Republic of the Philippines SUPREME COURT EN BANC G.R. No.

164978 October 13, 2005

AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE ENRILE, LUISA P. EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL, and SERGIO R. OSMEA III, Petitioners vs. EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO J. CRUZ, JR., MICHAEL T. DEFENSOR, JOSEPH H. DURANO, RAUL M. GONZALEZ, ALBERTO G. ROMULO, RENE C. VILLA, and ARTHUR C. YAP, Respondents. DECISION CARPIO, J.: The Case This is a petition for certiorari and prohibition1 with a prayer for the issuance of a writ of preliminary injunction to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo ("President Arroyo") through Executive Secretary Eduardo R. Ermita ("Secretary Ermita") to Florencio B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap ("respondents") as acting secretaries of their respective departments. The petition also seeks to prohibit respondents from performing the duties of department secretaries. Antecedent Facts The Senate and the House of Representatives ("Congress") commenced their regular session on 26 July 2004. The Commission on Appointments, composed of Senators and Representatives, was constituted on 25 August 2004. Meanwhile, President Arroyo issued appointments2 to respondents as acting secretaries of their respective departments. Appointee Arthur C. Yap Alberto G. Romulo Raul M. Gonzalez Florencio B. Abad Avelino J. Cruz, Jr. Rene C. Villa Joseph H. Durano Michael T. Defensor Department Agriculture Foreign Affairs Justice Education National Defense Agrarian Reform Tourism Environment and Natural Resources The appointment papers are uniformly worded as follows: Sir: Pursuant to the provisions of existing laws, you are hereby appointed ACTING SECRETARY, DEPARTMENT OF (appropriate department) vice (name of person replaced). By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing this Office and the Civil Service Commission with copies of your Oath of Office. (signed) Gloria Arroyo Respondents took their oath of office and assumed duties as acting secretaries. On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator Pimentel"), Edgardo J. Angara ("Senator Angara"), Juan Ponce Enrile ("Senator Enrile"), Luisa P. EjercitoEstrada ("Senator Ejercito-Estrada"), Jinggoy E. Estrada ("Senator Estrada"), Panfilo M. Lacson ("Senator Lacson"), Alfredo S. Lim ("Senator Lim"), Jamby A.S. Madrigal ("Senator Madrigal"), and Sergio R. Osmea, III ("Senator Osmea") ("petitioners") filed the present petition as Senators of the Republic of the Philippines. Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo issued ad interim appointments3 to respondents as secretaries of the departments to which they were previously appointed in an acting capacity. The appointment papers are uniformly worded as follows: Date of Appointment 15 August 2004 23 August 2004 23 August 2004 23 August 2004 23 August 2004 23 August 2004 23 August 2004 23 August 2004

Sir: Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY [ AD INTERIM], DEPARTMENT OF (appropriate department). By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office. (signed) Gloria Arroyo Issue The petition questions the constitutionality of President Arroyos appointment of respondents as acting secretaries without t he consent of the Commission on Appointments while Congress is in session. The Courts Ruling The petition has no merit. Preliminary Matters On the Mootness of the Petition The Solicitor General argues that the petition is moot because President Arroyo had extended to respondents ad interim appointments on 23 September 2004 immediately after the recess of Congress. As a rule, the writ of prohibition will not lie to enjoin acts already done.4 However, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review.5 In the present case, the mootness of the petition does not bar its resolution. The question of the constitutionality of the P residents appointment of department secretaries in an acting capacity while Congress is in session will arise in every such appointment. On the Nature of the Power to Appoint The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of this executive power except in those instances when the Constitution expressly allows it to interfere.6 Limitations on the executive power to appoint are construed strictly against the legislature.7 The scope of the legislatures interference in the executives power to appoint is limited to the power to prescribe th e qualifications to an appointive office. Congress cannot appoint a person to an office in the guise of prescribing qualifications to that office. Neither may Congress impose on the President the duty to appoint any particular person to an office.8 However, even if the Commission on Appointments is composed of members of Congress, the exercise of its powers is executive and not legislative. The Commission on Appointments does not legislate when it exercises its power to give or withhold consent to presidential appointments. Thus: xxx The Commission on Appointments is a creature of the Constitution. Although its membership is confined to members of Congress, said Commission is independent of Congress. The powers of the Commission do not come from Congress, but emanate directly from the Constitution. Hence, it is not an agent of Congress. In fact, the functions of the Commissioner are purely executive in nature. xxx9 On Petitioners Standing The Solicitor General states that the present petition is a quo warranto proceeding because, with the exception of Secretary Ermita, petitioners effectively seek to oust respondents for unlawfully exercising the powers of department secretaries. The Solicitor General further states that petitioners may not claim standing as Senators because no power of the Commission on Appointments has been "infringed upon or violated by the President. xxx If at all, the Commission on Appointments as a body (rather than individual members of the Congress) may possess standing in this case."10 Petitioners, on the other hand, state that the Court can exercise its certiorari jurisdiction over unconstitutional acts of the President.11 Petitioners further contend that they possess standing because President Arroyos appointment of department secretaries in an acting capacity while Congress i s in session impairs the powers of Congress. Petitioners cite Sanlakas v. Executive Secretary12 as basis, thus: To the extent that the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts. Considering the independence of the Commission on Appointments from Congress, it is error for petitioners to claim standing in the present case as members of Congress. President Arroyos issuance of acting appointments while Congress is in session impairs no power of Congress. Among the petitioners, only the following are

members of the Commission on Appointments of the 13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada, and Senator Osmea as members. Thus, on the impairment of the prerogatives of members of the Commission on Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmea have standing in the present petition. This is in contrast to Senators Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their perceived prerogatives as members of Congress, possess no standing in the present petition. The Constitutionality of President Arroyos Issuance of Appointments to Respondents as Acting Secretaries Petitioners contend that President Arroyo should not have appointed respondents as acting secretaries because "in case of a vacancy in the Office of a Secretary, it is only an Undersecretary who can be designated as Acting Secretary."13 Petitioners base their argument on Section 10, Chapter 2, Book IV of Executive Order No. 292 ("EO 292"),14 which enumerates the powers and duties of the undersecretary. Paragraph 5 of Section 10 reads: SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary shall: xxx (5) Temporarily discharge the duties of the Secretary in the latters absence or inability to discharge his duties for any ca use or in case of vacancy of the said office, unless otherwise provided by law. Where there are more than one Undersecretary, the Secretary shall allocate the foregoing powers and duties among them. The President shall likewise make the temporary designation of Acting Secretary from among them; and xxx Petitioners further assert that "while Congress is in session, there can be no appointments, whether regular or acting, to a vacant position of an office needing confirmation by the Commission on Appointments, without first having obtained its consent." 15 In sharp contrast, respondents maintain that the President can issue appointments in an acting capacity to department secretaries without the consent of the Commission on Appointments even while Congress is in session. Respondents point to Section 16, Article VII of the 1987 Constitution. Section 16 reads: SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. Respondents also rely on EO 292, which devotes a chapter to the Presidents power of appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read: SEC. 16. Power of Appointment. The President shall exercise the power to appoint such officials as provided for in the Constitution and laws . SEC. 17. Power to Issue Temporary Designation. (1) The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when: (a) the officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or (b) there exists a vacancy[.] (2) The person designated shall receive the compensation attached to the position, unless he is already in the government service in which case he shall receive only such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The compensation hereby authorized shall be paid out of the funds appropriated for the office or agency concerned. (3) In no case shall a temporary designation exceed one (1) year. (Emphasis supplied) Petitioners and respondents maintain two diametrically opposed lines of thought. Petitioners assert that the President cannot issue appointments in an acting capacity to department secretaries while Congress is in session because the law does not give the President such power. In contrast, respondents insist that the President can issue such appointments because no law prohibits such appointments. The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office.16 In case of vacancy in an office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be.

The office of a department secretary may become vacant while Congress is in session. Since a department secretary is the alter ego of the President, the acting appointee to the office must necessarily have the Presidents confidence. Thus, by the very nature of the office of a department secretary, the President must appoint in an acting capacity a person of her choice even while Congress is in session. That person may or may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the permanent appointee. The law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I, Book III of EO 292 states that "[t]he President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch." Thus, the President may even appoint in an acting capacity a person not yet in the government service, as long as the President deems that person competent. Petitioners assert that Section 17 does not apply to appointments vested in the President by the Constitution, because it only applies to appointments vested in the President by law. Petitioners forget that Congress is not the only source of law. "Law" refers to the Constitution, statutes or acts of Congress, municipal ordinances, implementing rules issued pursuant to law, and judicial decisions.17 Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse. Petitioners fail to consider that acting appointments cannot exceed one year as expressly provided in Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard to prevent abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on Appointments. In distinguishing ad interim appointments from appointments in an acting capacity, a noted textbook writer on constitutional law has observed: Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of them are effective upon acceptance. But ad-interim appointments are extended only during a recess of Congress, whereas acting appointments may be extended any time there is a vacancy. Moreover ad-interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on Appointments. Acting appointments are a way of temporarily filling important offices but, if abused, they can also be a way of circumventing the need for confirmation by the Commission on Appointments.18 However, we find no abuse in the present case. The absence of abuse is readily apparent from President Arroyo s issuance of ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse of one year. WHEREFORE, we DISMISS the present petition for certiorari and prohibition. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-25716 July 28, 1966

FERNANDO LOPEZ, petitioner, vs. GERARDO ROXAS and PRESIDENTIAL ELECTORAL TRIBUNAL, respondents. Vicente Francisco for petitioner. Sycip and Salazar for respondents. CONCEPCION, C.J.: Petitioner Fernando Lopez and respondent Gerardo Roxas were the main contenders for the Office of Vice-President of the Philippines in the general elections held on November 9, 1965. By Resolution No. 2, approved on December 17, 1965, the two Houses of Congress, in joint session assembled as the board charged with the duty to canvass the votes then cast for President and Vice President of the Philippines, proclaimed petitioner Fernando Lopez elected to the latter office with 3,531,550 votes, or a plurality of 26,724 votes over his closest opponent, respondent Gerardo M. Roxas, in whose favor 3,504,826 votes had been tallied, according to said resolution. On January 5, 1966, respondent filed, with the Presidential Electoral Tribunal, Election Protest No. 2, contesting the election of petitioner herein as Vice-President of the Philippines, upon the ground that it was not he, but said respondent, who had obtained the largest number of votes for said office. On February 22, 1966, petitioner Lopez instituted in the Supreme Court the present original action, for prohibition with preliminary injunction, against respondent Roxas, to prevent the Presidential Electoral Tribunal from hearing and deciding the aforementioned election contest, upon the ground that Republic Act No. 1793, creating said Tribunal, is "unconstitutional," and that, "all proceedings taken by it are a nullity." Petitioner's contention is predicated upon the ground, that Congress may not, by law, authorize an election contest for President and Vice-President, the Constitution being silent thereon; that such contest tends to nullify the constitutional authority of Congress to proclaim the candidates elected for President and Vice-President; that the recount of votes by the Presidential Electoral Tribunal, as an incident of an election contest, is inconsistent with the exclusive power of Congress to canvass the election returns for the President and the Vice-President; that no amendment to the Constitution providing for an election protest involving the office of President and Vice-President has been adopted, despite the constitutional amendment governing election contests for Members of Congress; that the tenure of the President and the Vice-President is fixed by the Constitution and cannot be abridged by an Act of Congress, like Republic Act No. 1793; that said Act has the effect of amending the Constitution, in that it permits the Presidential Electoral Tribunal to review the congressional proclamation of the president-elect and the vice-president-elect; that the constitutional convention had rejected the original plan to include in the Constitution a provision authorizing election contest affecting the president-elect and the vicepresident-elect before an electoral commission; that the people understood the Constitution to authorize election contests only for Members of Congress, not for President and Vice-President, and, in interpreting the Constitution, the people's intent is paramount; that it is illegal for Justices of the Supreme Court to sit as members of the Presidential Electoral Tribunal, since the decisions thereof are appealable to the Supreme Court on questions of law; that the Presidential Electoral Tribunal is a court inferior to the Supreme Court; and that Congress cannot by legislation appoint in effect the members of the Presidential Electoral Tribunal. Pursuant to the Constitution, "the Judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law.1 This provision vests in the judicial branch of the government, not merely some specified or limited judicial power, but "the" judicial power under our political system, and, accordingly, the entirety or "all" of said power, except, only, so much as the Constitution confers upon some other agency, such as the power to "judge all contests relating to the election, returns and qualifications" of members of the Senate and those of the House of Representatives which is vested by the fundamental law solely in the Senate Electoral Tribunal and the House Electoral Tribunal, respectively.2 Judicial power is the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights.3 The proper exercise of said authority requires legislative action: (1) defining such enforceable and demandable rights and/or prescribing remedies for violations thereof; and (2) determining the court with jurisdiction to hear and decide said controversies or disputes, in the first instance and/or on appeal. For this reason, the Constitution ordains that "Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts," subject to the limitations set forth in the fundamental law.4 Prior to the approval of Republic Act No. 1793, a defeated candidate for president or vice-president, who believe that he was the candidate who obtained the largest number of votes for either office, despite the proclamation by Congress of another candidate as the president-elect or vice-president-elect, had no legal right to demand by election protest a recount of the votes cast for the office concerned, to establish his right thereto. As a consequence, controversies or disputes on this matter were not justiciable.5 Section 1 of Republic Act No. 1793, which provides that: There shall be an independent Presidential Electoral Tribunal ... which shall be the sole judge of all contests relating to the election, returns, and qualifications of the president-elect and the vice-president-elect of the Philippines. has the effect of giving said defeated candidate the legal right to contest judicially the election of the President-elect or Vice-President-elect and to demand a recount of the votes cast for the office involved in the litigation as well as to secure a judgment declaring that he6 is the one elected president or vice-president, as the case may be,7 and that, as such, he is entitled to assume the duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal "shall be composed of the Chief Justice and the other ten Members of the Supreme Court," said legislation has conferred upon such Court an additional original jurisdiction of an exclusive character.8

Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment may be likened to the fact that courts of first instance perform the functions of such ordinary courts of first instance, 9 those of court of land registration, 10 those of probate courts, 11 and those of courts of juvenile and domestic relations. 12 It is, also, comparable to the situation obtaining when the municipal court of a provincial capital exercises its authority, pursuant to law, over a limited number of cases which were previously within the exclusive jurisdiction of courts of first instance. 13 In all of these instances, the court (court of first instance or municipal court) is only one, although the functions may be distinct and, even, separate. Thus the powers of a court of first instance, in the exercise of its jurisdiction over ordinary civil cases, are broader than, as well as distinct and separate from, those of the same court acting as a court of land registration or a probate court, or as a court of juvenile and domestic relations. So too, the authority of the municipal court of a provincial capital, when acting as such municipal court, is, territorially more limited than that of the same court when hearing the aforementioned cases which are primary within the jurisdiction of courts of first instance. In other words, there is only one court, although it may perform the functions pertaining to several types of courts, each having some characteristics different from those of the others. Indeed, the Supreme Court, 14 the Court of Appeals 15 and courts of first instance, 16 are vested with original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are booth trial courts and appellate courts, without detracting from the fact that there is only one Supreme Court, one Court of Appeals, and one court of first instance, clothed with authority to discharged said dual functions. A court of first instance, when performing the functions of a probate court or a court of land registration, or a court of juvenile and domestic relations, although with powers less broad than those of a court of first instance, hearing ordinary actions, is not inferior to the latter, for one cannot be inferior to itself. So too, the Presidential Electoral Tribunal is not inferior to the Supreme Court, since it is the same Court although the functions peculiar to said Tribunal are more limited in scope than those of the Supreme Court in the exercise of its ordinary functions. Hence, the enactment of Republic Act No. 1793, does not entail an assumption by Congress of the power of appointment vested by the Constitution in the President. It merely connotes the imposition of additional duties upon the Members of the Supreme Court. 17 Moreover, the power to be the "judge ... of ... contests relating to the election, returns, and qualifications" of any public officer is essentially judicial. As such under the very principle of separation of powers invoked by petitioner herein it belongs exclusively to the judicial department, except only insofar as the Constitution provides otherwise. This is precisely the reason why said organic law ordains that "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" (Article VI, Section 11, of the Constitution). In other words, the purpose of this provision was to exclude the power to decide such contests relating to Members of Congress which by nature is judicial 18 from the operation of the general grant of judicial power 19 to "the Supreme Court and such inferior courts as may be established by law. Instead of indicating that Congress may not enact Republic Act No. 1793, the aforementioned provision of the Constitution, establishing said Electoral Tribunals for Members of Congress only, proves the exact opposite, namely: that the Constitution intended to vest Congress with discretion 20 to determine by law whether or not the election of a president-elect or that of a vice-president-elect may be contested and, if Congress should decide in the affirmative, which court of justice shall have jurisdiction to hear the contest. It is, even, debatable whether such jurisdiction may be conferred, by statute, to a board, commission or tribunal composed partly of Members of Congress and Members of the Supreme Court because of its possible inconsistency with the constitutional grant of the judicial power to "the Supreme Court and ... such inferior courts as may be established by law," for said board, commission or tribunal would be neither "the Supreme Court, 21 nor, certainly, "such inferior courts as, may be established by law." It follows, therefore, not only that Republic Act No. 1793 is not inconsistent with the Constitution or with the principle of separation of powers underlying the same, but, also, that it is in harmony with the aforementioned grant of "the judicial power" to said courts. Indeed, when Claro M. Recto, Chairman of the Constitutional Convention, proposed that the original move therein to include in the fundamental law a provision creating an Electoral Commission 22 to hear election contests against the President-elect and the Vice-President-elect, be given up, he expressed the view that the elimination of said provision would have the effect of leaving in the hands of the legislative department the power to decide what entity or body would "look into the protests for the positions of President and Vice-President." 23 Twenty-two (22) years later, or on May 3, 1957 then Senator Recto reiterated this view, when, in the course of the debates on the Bill which later became Republic Act No. 1793, he stated: ... Mr. President, as far as I can remember, the intention of the constitutional convention was to leave this matter to ordinary legislation. Such was, also, the impression of Dr. Jose M. Aruego, another prominent Member of the Convention, who says 24 that Election protests for the Presidency and the Vice-Presidendency were left to be judged in a manner and by a body decided by the National Assembly. (Emphasis ours.) No less than one of the main counsel for petitioner herein, himself, another delegate to the Constitutional Convention, evidently shared this view as late as September 30, 1965, for the introduction to his 1965 edition of "the Revised Election Code" states that "he will always be remembered for ... his famous bill creating the Presidential Electoral Tribunal ...". Indeed as a member of the Senate, on January 3, 1950, he Introduced Senate Bill No. 1 seeking to create a Presidential Electoral Tribunal "to try, hear and decide protests contesting the election of the President and the Vice-President of the Philippines", which shall be composed of three Justices of the Supreme Court, including the Chief Justice, and four Senators and four Members of the House of Representatives. Then, again, the records of the Convention show, that in voting eventually to eliminate, from the draft of the Constitution, the provision establishing a Presidential Electoral Commission, the delegates were influenced by the fact that there was no similar provision in the Federal Constitution of the United States. Having followed the pattern thereof, it must be assumed, therefore, in the absence of any indicium to the contrary, 25 that the Convention had adhered, also, to the interpretation given to this feature of said Federal Constitution, as may be deduced from the fact that, by an act of Congress of the United States, approved on January 29, 1877, an Electoral Commission was created to hear and decide certain issues concerning the election of the President of said nation held in 1876. It is, also worthy of notice that pursuant to said Act, nothing therein "shall be held to impair or affect any right now existing under the Constitution and laws to question, by proceedings in the judicial courts of the United States, the right or title of the person who shall be declared elected, or who shall claim to be President or Vice-President of the United States, if any such right exists". 26 Thus the absence of a provision in said Federal Constitution governing protests against the election of the President and the Vice-President had been construed to be without prejudice to the right of the defeated candidate to file a protest before the courts of justice of the United States, if the laws thereof permitted it. In other words, the Federal Congress was deemed clothed with authority to determine, by ordinary legislation, whether or not protests against the election of said officers may properly be entertained by the judicial department. Needless to say, the power of congress to declare who, among the candidates for President and/or Vice-President, has obtained the largest number of votes, is entirely different in nature from and not inconsistent with the jurisdiction vested in the Presidential Electoral Tribunal by Republic Act No. 1793. Congress merely acts as a

national board of canvassers, charged with the ministerial and executive duty 27 to make said declaration, on the basis of the election returns duly certified by provincial and city boards of canvassers. 28 Upon the other hand, the Presidential Electoral Tribunal has the judicial power to determine whether or not said duly certified election returns have been irregularly made or tampered with, or reflect the true result of the elections in the areas covered by each, and, if not, to recount the ballots cast, and, incidentally thereto, pass upon the validity of each ballot or determine whether the same shall be counted, and, in the affirmative, in whose favor, which Congress has power to do. It is, likewise, patent that the aforementioned authority of the Presidential Electoral Tribunal to determine whether or not the protestant has a better right than the President and/or the Vice-President declared elected by Congress would not abridge the constitutional tenure. If the evidence introduced in the election protest shows that the person really elected president or vice-president is the protestant, not the person declared elected by Congress, then the latter had legally no constitutional tenure whatsoever, and, hence, he can claim no abridgement thereof. 1wph1.t It is similarly obvious that, in imposing upon the Supreme Court the additional duty of performing the functions of a Presidential Electoral Tribunal, Congress has not, through Republic Act No. 1793, encroached upon the appointing power of the Executive. The imposition of new duties constitutes, neither the creation of an office, nor the appointment of an officer. 29 In view of a resolution of this Court dated July 8, 1966, upholding the validity of Republic Act No. 1793, upon the ground that it merely vests additional jurisdiction in the Supreme Court, petitioner has filed a motion dated July 13, 1966, praying this Court "to clarify whether or not" this "election contest should as a consequence ... be docketed with, and the records thereof transferred, to this Supreme Court, and all pleadings, papers and processes relative thereto should thence forth be filed with it". The motion is, evidently, based upon the premise that the Supreme Court is different and distinct from the Presidential Electoral Tribunal, which is erroneous, as well as contrary to the ruling made in said resolution. Wherefore, the petition herein is hereby dismissed and the writs therein prayed for denied accordingly. The aforesaid motion is, moreover, denied. With costs against the petitioner. It is so ordered.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 139554 July 21, 2006

ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and FREDDIE GARCIA, petitioners, vs. BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE POTENCIANO, and DOREEN FERNANDEZ, respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - x G.R. No. 139565 July 21, 2006

BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE POTENCIANO, and DOREEN FERNANDEZ, petitioners, vs. ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and FREDDIE GARCIA, respondents. DECISION CARPIO, J.: Presidential Decree No. 15 (PD 15) created the Cultural Center of the Philippines (CCP) for the primary purpose of propagating arts and culture in the Philippines.1 The CCP is to awaken the consciousness of the Filipino people to their artistic and cultural heritage and encourage them to preserve, promote, enhance, and develop such heritage.2 PD 15 created a Board of Trustees ("Board") to govern the CCP. PD 15 mandates the Board to draw up programs and projects that (1) cultivate and enhance public interest in, and appreciation of, Philippine art; (2) discover and develop talents connected with Philippine cultural pursuits; (3) create opportunities for individual and national self-expression in cultural affairs; and (4) encourage the organization of cultural groups and the staging of cultural exhibitions.3 The Board administers and holds in trust real and personal properties of the CCP for the benefit of the Filipino people.4 The Board invests income derived from its projects and operations in a Cultural Development Fund set up to attain the CCP's objectives.5 The consolidated petitions in the case at bar stem from a quo warranto proceeding involving two sets of CCP Boards. The controversy revolves on who between the contending groups, both claiming as the rightful trustees of the CCP Board, has the legal right to hold office. The resolution of the issue boils down to the constitutionality of the provision of PD 15 on the manner of filling vacancies in the Board. The Case Before us are two consolidated Petitions for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure. In G.R. No. 139554, petitioners Armita B. Rufino ("Rufino"), Zenaida R. Tantoco ("Tantoco"),6 Lorenzo Calma ("Calma"), Rafael Simpao, Jr. ("Simpao"), and Freddie Garcia ("Garcia"), represented by the Solicitor General and collectively referred to as the Rufino group, seek to set aside the Decision 7 dated 14 May 1999 of the Court of Appeals in CA-G.R. SP No. 50272 as well as the Resolution dated 3 August 1999 denying the motion for reconsideration. The dispositive portion of the appellate court's decision reads: WHEREFORE, judgment is hereby rendered 1) Declaring petitioners [the Endriga group] to have a clear right to their respective offices to which they were elected by the CCP Board up to the expiration of their 4-year term, 2) Ousting respondents [the Rufino group], except respondent Zenaida R. Tantoco, from their respective offices and excluding them therefrom, and 3) Dismissing the case against respondent Zenaida R. Tantoco. SO ORDERED.8 In G.R. No. 139565, petitioners Baltazar N. Endriga ("Endriga"), Ma. Paz D. Lagdameo ("Lagdameo"), Patricia C. Sison ("Sison"), Irma Ponce-Enrile Potenciano ("Potenciano"), and Doreen Fernandez ("Fernandez"), collectively referred to as the Endriga group, assail the Resolution dated 3 August 1999 issued by the Court of Appeals in the same case insofar as it denied their Motion for Immediate Execution of the Decision dated 14 May 1999. The Antecedents On 25 June 1966, then President Ferdinand E. Marcos issued Executive Order No. 30 (EO 30) creating the Cultural Center of the Philippines as a trust governed by a Board of Trustees of seven members to preserve and promote Philippine culture. The original founding trustees, who were all appointed by President Marcos, were Imelda Romualdez-Marcos, Juan Ponce-Enrile, Andres Soriano, Jr., Antonio Madrigal, Father Horacio Dela Costa, S.J., I.P. Soliongco, and Ernesto Rufino.

On 5 October 1972, or soon after the declaration of Martial Law, President Marcos issued PD 15, 9 the CCP's charter, which converted the CCP under EO 30 into a nonmunicipal public corporation free from the "pressure or influence of politics."10 PD 15 increased the members of CCP's Board from seven to nine trustees. Later, Executive Order No. 1058, issued on 10 October 1985, increased further the trustees to 11. After the People Power Revolution in 1986, then President Corazon C. Aquino asked for the courtesy resignations of the then incumbent CCP trustees and appointed new trustees to the Board. Eventually, during the term of President Fidel V. Ramos, the CCP Board included Endriga, Lagdameo, Sison, Potenciano, Fernandez, Lenora A. Cabili ("Cabili"), and Manuel T. Maosa ("Maosa"). On 22 December 1998, then President Joseph E. Estrada appointed seven new trustees to the CCP Board for a term of four years to replace the Endriga group as well as two other incumbent trustees. The seven new trustees were: 1. Armita B. Rufino - President, vice Baltazar N. Endriga 2. Zenaida R. Tantoco - Member, vice Doreen Fernandez 3. Federico Pascual - Member, vice Lenora A. Cabili 4. Rafael Buenaventura - Member, vice Manuel T. Maosa 5. Lorenzo Calma - Member, vice Ma. Paz D. Lagdameo 6. Rafael Simpao, Jr. - Member, vice Patricia C. Sison 7. Freddie Garcia - Member, vice Irma Ponce-Enrile Potenciano Except for Tantoco, the Rufino group took their respective oaths of office and assumed the performance of their duties in early January 1999. On 6 January 1999, the Endriga group filed a petition for quo warranto before this Court questioning President Estrada's appointment of seven new members to the CCP Board. The Endriga group alleged that under Section 6(b) of PD 15, vacancies in the CCP Board "shall be filled by election by a vote of a majority of the trustees held at the next regular meeting x x x." In case "only one trustee survive[s], the vacancies shall be filled by the surviving trustee acting in consultation with the ranking officers of the [CCP]." The Endriga group claimed that it is only when the CCP Board is entirely vacant may the President of the Philippines fill such vacancies, acting in consultation with the ranking officers of the CCP. The Endriga group asserted that when former President Estrada appointed the Rufino group, only one seat was vacant due to the expiration of Maosa's term. The CCP Board then had 10 incumbent trustees, namely, Endriga, Lagdameo, Sison, Potenciano, Fernandez, together with Cabili, Father Bernardo P. Perez ("Fr. Perez"), Eduardo De los Angeles ("De los Angeles"), Ma. Cecilia Lazaro ("Lazaro"), and Gloria M. Angara ("Angara"). President Estrada retained Fr. Perez, De los Angeles, Lazaro, and Angara as trustees. Endriga's term was to expire on 26 July 1999, while the terms of Lagdameo, Sison, Potenciano, and Fernandez were to expire on 6 February 1999. The Endriga group maintained that under the CCP Charter, the trustees' fixed four-year term could only be terminated "by reason of resignation, incapacity, death, or other cause." Presidential action was neither necessary nor justified since the CCP Board then still had 10 incumbent trustees who had the statutory power to fill by election any vacancy in the Board. The Endriga group refused to accept that the CCP was under the supervision and control of the President. The Endriga group cited Section 3 of PD 15, which states that the CCP "shall enjoy autonomy of policy and operation x x x." The Court referred the Endriga group's petition to the Court of Appeals "for appropriate action" in observance of the hierarchy of courts. On 14 May 1999, the Court of Appeals rendered the Decision under review granting the quo warranto petition. The Court of Appeals declared the Endriga group lawfully entitled to hold office as CCP trustees. On the other hand, the appellate court's Decision ousted the Rufino group from the CCP Board. In their motion for reconsideration, the Rufino group asserted that the law could only delegate to the CCP Board the power to appoint officers lower in rank than the trustees of the Board. The law may not validly confer on the CCP trustees the authority to appoint or elect their fellow trustees, for the latter would be officers of equal rank and not of lower rank. Section 6(b) of PD 15 authorizing the CCP trustees to elect their fellow trustees should be declared unconstitutional being repugnant to Section 16, Article VII of the 1987 Constitution allowing the appointment only of "officers lower in rank" than the appointing power. On 3 August 1999, the Court of Appeals denied the Rufino group's motion for reconsideration. The Court of Appeals also denied the Endriga group's motion for immediate execution of the 14 May 1999 Decision. Hence, the instant consolidated petitions. Meanwhile, Angara filed a Petition-in-Intervention before this Court alleging that although she was not named as a respondent in the quo warranto petition, she has an interest in the case as the then incumbent CCP Board Chairperson. Angara adopted the same position and offered the same arguments as the Rufino group. The Ruling of the Court of Appeals

The Court of Appeals held that Section 6(b) of PD 15 providing for the manner of filling vacancies in the CCP Board is clear, plain, and free from ambiguity. Section 6(b) of PD 15 mandates the remaining trustees to fill by election vacancies in the CCP Board. Only when the Board is entirely vacant, which is not the situation in the present case, may the President exercise his power to appoint. The Court of Appeals stated that the legislative history of PD 15 shows a clear intent "to insulate the position of trustee from the pressure or influence of politics by abandoning appointment by the President of the Philippines as the mode of filling" 11 vacancies in the CCP Board. The Court of Appeals held that until Section 6(b) of PD 15 is declared unconstitutional in a proper case, it remains the law. The Court of Appeals also clarified that PD 15 vests on the CCP Chairperson the power to appoint all officers, staff, and personnel of the CCP, subject to confirmation by the Board. The Court of Appeals denied the Rufino group's motion for reconsideration for failure to raise new issues except the argument that Section 6(b) of PD 15 is unconstitutional. The Court of Appeals declined to rule on the constitutionality of Section 6(b) of PD 15 since the Rufino group raised this issue for the first time in the motion for reconsideration. The Court of Appeals also held, "Nor may the President's constitutional and/or statutory power of supervision and control over government corporations restrict or modify the application of the CCP Charter."12 The Court of Appeals, moreover, denied the Endriga group's motion for immediate execution of judgment on the ground that the reasons submitted to justify execution pending appeal were not persuasive. The Issues In G.R. No. 139554, the Rufino group, through the Solicitor General, contends that the Court of Appeals committed reversible error: I x x x in holding that it was "not actuated" to pass upon the constitutionality of Section 6(b) of PD 15 inasmuch as the issue was raised for the first time in [Rufino et al.'s] motion for reconsideration; II x x x in not holding that Section 6(b) of PD 15 is unconstitutional considering that: A. x x x [it] is an invalid delegation of the President's appointing power under the Constitution; B. x x x [it] effectively deprives the President of his constitutional power of control and supervision over the CCP; III x x x in declaring the provisions of PD 15 as clear and complete and in failing to apply the executive/administrative construction x x x which has been consistently recognized and accepted since 1972; IV x x x in finding that [Endriga et al.] have a clear legal right to be the incumbent trustees and officers of the CCP considering that: A. Endriga et al. are estopped from instituting the quo warranto action since they recognized and benefited from the administrative construction regarding the filling of vacancies in the CCP Board of Trustees x x x; B. x x x [Endriga et al.'s] terms did not legally commence as [they] were not validly elected under PD 15; C. assuming that [Endriga et al.] were validly elected, they lost their right to retain their offices because their terms as trustees expired on 31 December 1998; D. [Endriga et al.] assumed positions in conflict x x x with their offices in the CCP and were thus not entitled to retain the same; V x x x in not dismissing the quo warranto petition for being moot x x x; VI x x x in holding that [Rufino et al.'s] prayer [that the] disputed offices [be declared] entirely as vacant is bereft of basis and amounts to "an admission of their lack of right to the office they claim."13 In G.R. No. 139565, the Endriga group raises the following issue:

whether a writ of quo warranto involving a public office should be declared a self-executing judgment and deemed immediately executory under Rule 39, Section 4 of the Rules of Court.14 The Court's Ruling The petition in G.R. No. 139554 has merit. The battle for CCP's leadership between the Rufino and Endriga groups dealt a blow to the country's artistic and cultural activities. The highly publicized leadership row over the CCP created discord among management, artists, scholars, employees, and even the public because of the public interest at stake. Subsequently, the assumption to office of a new President in 2001 seemingly restored normalcy to the CCP leadership. After then Vice-President Gloria MacapagalArroyo assumed the Presidency on 20 January 2001, the Rufino group tendered their respective resignations on 24-29 January 2001 as trustees of the CCP Board. On 12 July 2001, President Macapagal-Arroyo appointed 11 trustees to the CCP Board with the corresponding positions set opposite their names: 1. Baltazar N. Endriga - Chairman 2. Nestor O. Jardin - President 3. Ma. Paz D. Lagdameo - Member 4. Teresita O. Luz - Member 5. Irma P.E. Potenciano - Member 6. Eduardo D. De los Angeles - Member 7. Patricia C. Sison - Member 8. Benjamin H. Cervantes - Member 9. Sonia M. Roco - Member 10. Ruperto S. Nicdao, Jr. - Member 11. Lina F. Litton - Member In its special meeting on 13 July 2001, the CCP Board elected these 11 newly-appointed trustees to the same positions and as trustees of the CCP Board. In the same meeting, the Board also elected the Chairman and President. On 21 December 2001, the Solicitor General submitted to this Court a manifestation stating that the "election of the trustees was made without prejudice to the resolution of the constitutional issues before this Honorable Court in G.R. Nos. 139554 and 139565, x x x."15 The Issue of Mootness We first consider the Rufino group's contention that the Endriga group's quo warranto suit should have been dismissed for being moot. The Rufino group argued that when the Endriga group's terms subsequently expired, there was no more actual controversy for the Court to decide. For the Court to exercise its power of adjudication, there must be an actual case or controversy one that involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution.16 The case must not be moot or based on extra-legal or other similar considerations not cognizable by courts of justice. 17 A case becomes moot when its purpose has become stale.18 The purpose of the quo warranto petition was to oust the Rufino group from the CCP Board and to declare the Endriga group as the rightful trustees of the CCP Board. It may appear that supervening events have rendered this case moot with the resignation of the Rufino group as well as the expiration of the terms of the Endriga group based on their appointments by then President Ramos. A "new" set of CCP trustees had been appointed by President Macapagal-Arroyo and subsequently elected by the CCP Board. However, there are times when the controversy is of such character that to prevent its recurrence, and to assure respect for constitutional limitations, this Court must pass on the merits of a case. This is one such case. The issues raised here are no longer just determinative of the respective rights of the contending parties. The issues pertaining to circumstances personal to the Endriga group may have become stale. These issues are (1) whether the Endriga group is estopped from bringing the quo warranto for they themselves were appointed by the incumbent President; (2) whether they were validly elected by the remaining CCP trustees; (3) whether their terms expired on 31 December 1998 as specified in their appointment papers; and (4) whether they are entitled to immediate execution of judgment.

However, the constitutional question that gave rise to these issues will continue to spawn the same controversy in the future, unless the threshold constitutional question is resolved the validity of Section 6(b) and (c) of PD 15 on the manner of filling vacancies in the CCP Board. While the issues may be set aside in the meantime, they are certain to recur every four years, especially when a new President assumes office, generating the same controversy all over again. Thus, the issues raised here are capable of repetition, yet evading review if compromises are resorted every time the same controversy erupts and the constitutionality of Section 6(b) and (c) of PD 15 is not resolved. The Court cannot refrain from passing upon the constitutionality of Section 6(b) and (c) of PD 15 if only to prevent a repeat of this regrettable controversy and to protect the CCP from being periodically wracked by internecine politics. Every President who assumes office naturally wants to appoint his or her own trustees to the CCP Board. A frontal clash will thus periodically arise between the President's constitutional power to appoint under Section 16, Article VII of the 1987 Constitution and the CCP trustees' power to elect their fellow trustees under Section 6(b) and (c) of PD 15. This Court may, in the exercise of its sound discretion, brush aside procedural barriers19 and take cognizance of constitutional issues due to their paramount importance. It is the Court's duty to apply the 1987 Constitution in accordance with what it says and not in accordance with how the Legislature or the Executive would want it interpreted.20 This Court has the final word on what the law means.21 The Court must assure respect for the constitutional limitations embodied in the 1987 Constitution. Interpreting Section 6(b) and (c) of PD 15 At the heart of the controversy is Section 6(b) of PD 15, as amended, which reads: Board of Trustees. The governing powers and authority of the corporation shall be vested in, and exercised by, a Board of eleven (11) Trustees who shall serve without compensation. xxxx (b) Vacancies in the Board of Trustees due to termination of term, resignation, incapacity, death or other cause as may be provided in the By-laws, shall be filled by election by a vote of a majority of the trustees held at the next regular meeting following occurrence of such vacancy. The elected trustee shall then hold office for a complete term of four years unless sooner terminated by reason of resignation, incapacity, death or other cause. Should only one trustee survive, the vacancies shall be filled by the surviving trustee acting in consultation with the ranking officers of the Center. Such officers shall be designated in the Center's Code of By-Laws. Should for any reason the Board be left entirely vacant, the same shall be filled by the President of the Philippines acting in consultation with the aforementioned ranking officers of the Center. (Emphasis supplied) Inextricably related to Section 6(b) is Section 6(c) which limits the terms of the trustees, as follows: (c) No person may serve as trustee who is not a resident of the Philippines, of good moral standing in the community and at least 25 years of age: Provided, That there shall always be a majority of the trustees who are citizens of the Philippines. Trustees may not be reelected for more than two (2) consecutive terms. (Emphasis supplied) The clear and categorical language of Section 6(b) of PD 15 states that vacancies in the CCP Board shall be filled by a majority vote of the remaining trustees. Should only one trustee survive, the vacancies shall be filled by the surviving trustee acting in consultation with the ranking officers of the CCP. Should the Board become entirely vacant, the vacancies shall be filled by the President of the Philippines acting in consultation with the same ranking officers of the CCP. Thus, the remaining trustees, whether one or more, elect their fellow trustees for a fixed four-year term. On the other hand, Section 6(c) of PD 15 does not allow trustees to reelect fellow trustees for more than two consecutive terms. The Power of Appointment The source of the President's power to appoint, as well as the Legislature's authority to delegate the power to appoint, is found in Section 16, Article VII of the 1987 Constitution which provides: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. (Emphasis supplied) The power to appoint is the prerogative of the President, except in those instances when the Constitution provides otherwise. Usurpation of this fundamentally Executive power by the Legislative and Judicial branches violates the system of separation of powers that inheres in our democratic republican government.22 Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of officers. The first group refers to the heads of the Executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution. The second group refers to those whom the President may be authorized by law to appoint. The third group refers to all other officers of the Government whose appointments are not otherwise provided by law. Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments Congress may by law vest in the heads of departments, agencies, commissions, or boards. The present case involves the interpretation of Section 16, Article VII of the 1987 Constitution with respect to the appointment of this fourth group of officers.23

The President appoints the first group of officers with the consent of the Commission on Appointments. The President appoints the second and third groups of officers without the consent of the Commission on Appointments. The President appoints the third group of officers if the law is silent on who is the appointing power, or if the law authorizing the head of a department, agency, commission, or board to appoint is declared unconstitutional. Thus, if Section 6(b) and (c) of PD 15 is found unconstitutional, the President shall appoint the trustees of the CCP Board because the trustees fall under the third group of officers. The Scope of the Appointment Power of the Heads of Departments, Agencies, Commissions, or Boards The original text of Section 16, Article VII of the 1987 Constitution, as written in Resolution No. 51724 of the Constitutional Commission, is almost a verbatim copy of the one found in the 1935 Constitution. Constitutional Commissioner Father Joaquin Bernas, S.J., explains the evolution of this provision and its import, thus: The last sentence of the first paragraph of Section 16 x x x is a relic from the 1935 and 1973 Constitutions, x x x. Under the 1935 Constitution, the provision was: "but the Congress may by law vest the appointment of inferior officers in the President alone, in the courts, or in the heads of departments." As already seen, it meant that, while the general rule was that all presidential appointments needed confirmation by the Commission on Appointments, Congress could relax this rule by vesting the power to appoint "inferior officers" in "the President alone, in the courts, or in the heads of departments." It also meant that while, generally, appointing authority belongs to the President, Congress could let others share in such authority. And the word "inferior" was understood to mean not petty or unimportant but lower in rank than those to whom appointing authority could be given. Under the 1973 Constitution, according to which the power of the President to appoint was not limited by any other body, the provision read: "However, the Batasang Pambansa may by law vest in members of the Cabinet, courts, heads of agencies, commissions, and boards the power to appoint inferior officers in their respective offices." No mention was made of the President. The premise was that the power to appoint belonged to the President; but the Batasan could diffuse this authority by allowing it to be shared by officers other than the President. The 1987 provision also has the evident intent of allowing Congress to give to officers other than the President the authority to appoint. To that extent therefore reference to the President is pointless. And by using the word "alone," copying the tenor of the 1935 provision, it implies, it is submitted, that the general rule in the 1935 Constitution of requiring confirmation by the Commission on Appointments had not been changed. Thereby the picture has been blurred. This confused text, however, should be attributed to oversight. Reference to the President must be ignored and the whole sentence must be read merely as authority for Congress to vest appointing power in courts, in heads of departments, agencies, commissions, or boards after the manner of the 1973 text. Incidentally, the 1987 text, in order to eschew any pejorative connotation, avoids the phrase "inferior officers" and translates it instead into "officers lower in rank," that is, lower in rank than the courts or the heads of departments, agencies, commissions, or boards.25 (Emphasis supplied) The framers of the 1987 Constitution clearly intended that Congress could by law vest the appointment of lower-ranked officers in the heads of departments, agencies, commissions, or boards. The deliberations26 of the 1986 Constitutional Commission explain this intent beyond any doubt.27 The framers of the 1987 Constitution changed the qualifying word "inferior" to the less disparaging phrase "lower in rank" purely for style. However, the clear intent remained that these inferior or lower in rank officers are the subordinates of the heads of departments, agencies, commissions, or boards who are vested by law with the power to appoint. The express language of the Constitution and the clear intent of its framers point to only one conclusion the officers whom the heads of departments, agencies, commissions, or boards may appoint must be of lower rank than those vested by law with the power to appoint. Congress May Vest the Authority to Appoint Only in the Heads of the Named Offices Further, Section 16, Article VII of the 1987 Constitution authorizes Congress to vest "in the heads of departments, agencies, commissions, or boards" the power to appoint lower-ranked officers. Section 16 provides: The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. (Emphasis supplied) In a department in the Executive branch, the head is the Secretary. The law may not authorize the Undersecretary, acting as such Undersecretary, to appoint lowerranked officers in the Executive department. In an agency, the power is vested in the head of the agency for it would be preposterous to vest it in the agency itself. In a commission, the head is the chairperson of the commission. In a board, the head is also the chairperson of the board. In the last three situations, the law may not also authorize officers other than the heads of the agency, commission, or board to appoint lower-ranked officers. The grant of the power to appoint to the heads of agencies, commissions, or boards is a matter of legislative grace. Congress has the discretion to grant to, or withhold from, the heads of agencies, commissions, or boards the power to appoint lower-ranked officers. If it so grants, Congress may impose certain conditions for the exercise of such legislative delegation, like requiring the recommendation of subordinate officers or the concurrence of the other members of the commission or board. This is in contrast to the President's power to appoint which is a self-executing power vested by the Constitution itself and thus not subject to legislative limitations or conditions.28 The power to appoint conferred directly by the Constitution on the Supreme Court en banc29 and on the Constitutional Commissions30 is also selfexecuting and not subject to legislative limitations or conditions. The Constitution authorizes Congress to vest the power to appoint lower-ranked officers specifically in the "heads" of the specified offices, and in no other person.31 The word "heads" refers to the chairpersons of the commissions or boards and not to their members, for several reasons.

First, a plain reading of the last sentence of the first paragraph of Section 16, Article VII of the 1987 Constitution shows that the word "heads" refers to all the offices succeeding that term, namely, the departments, agencies, commissions, or boards. This plain reading is consistent with other related provisions of the Constitution. Second, agencies, like departments, have no collegial governing bodies but have only chief executives or heads of agencies. Thus, the word "heads" applies to agencies. Any other interpretation is untenable. Third, all commissions or boards have chief executives who are their heads. Since the Constitution speaks of "heads" of offices, and all commissions or boards have chief executives or heads, the word "heads" could only refer to the chief executives or heads of the commissions or boards. Fourth, the counterpart provisions of Section 16, Article VII of the 1987 Constitution in the 1935 and 1973 Constitutions uniformly refer to "heads" of offices. The 1935 Constitution limited the grant of the appointment power only to "heads of departments." 32 The 1973 Constitution expanded such grant to other officers, namely, "members of the Cabinet, x x x, courts, heads of agencies, commissions, and boards x x x." 33 If the 1973 Constitution intended to extend the grant to members of commissions or boards, it could have followed the same language used for "members of the Cabinet" so as to state "members of commissions or boards." Alternatively, the 1973 Constitution could have placed the words commissions and boards after the word "courts" so as to state "members of the Cabinet, x x x, courts, commissions and boards." Instead, the 1973 Constitution used "heads of agencies, commissions, and boards." Fifth, the 1935, 1973, and 1987 Constitutions make a clear distinction whenever granting the power to appoint lower-ranked officers to members of a collegial body or to the head of that collegial body. Thus, the 1935 Constitution speaks of vesting the power to appoint "in the courts, or in the heads of departments." Similarly, the 1973 Constitution speaks of "members of the Cabinet, courts, heads of agencies, commissions, and boards." Also, the 1987 Constitution speaks of vesting the power to appoint "in the courts, or in the heads of departments, agencies, commissions, or boards." This is consistent with Section 5(6), Article VIII of the 1987 Constitution which states that the "Supreme Court shall x x x [a]ppoint all officials and employees of the Judiciary in accordance with the Civil Service Law," making the Supreme Court en banc the appointing power. In sharp contrast, when the 1987 Constitution speaks of the power to appoint lower-ranked officers in the Executive branch, it vests the power "in the heads of departments, agencies, commissions, or boards." In addition, the 1987 Constitution expressly provides that in the case of the constitutional commissions, the power to appoint lower-ranked officers is vested in the commission as a body. Thus, Section 4, Article IX-A of the 1987 Constitution provides, "The Constitutional Commissions shall appoint their officials and employees in accordance with law." Sixth, the last clause of the pertinent sentence in Section 16, Article VII of the 1987 Constitution is an enumeration of offices whose heads may be vested by law with the power to appoint lower-ranked officers. This is clear from the framers' deliberations of the 1987 Constitution, thus: THE PRESIDENT: Commissioner Davide is recognized. MR. DAVIDE: On page 8, line 3, change the period (.) after "departments" to a comma (,) and add AGENCIES, COMMISSIONS, OR BOARDS. This is just to complete the enumeration in the 1935 Constitution from which this additional clause was taken. THE PRESIDENT: Does the Committee accept? xxxx MR. SUMULONG: We accept the amendment. MR. ROMULO: The Committee has accepted the amendment, Madam President. THE PRESIDENT: Is there any objection to the addition of the words "AGENCIES, COMMISSIONS, OR BOARDS" on line 3, page 8? ( Silence) The Chair hears none; the amendment is approved.34 (Italicization in the original; boldfacing supplied) As an enumeration of offices, what applies to the first office in the enumeration also applies to the succeeding offices mentioned in the enumeration. Since the words "in the heads of" refer to "departments," the same words "in the heads of" also refer to the other offices listed in the enumeration, namely, "agencies, commissions, or boards." The Chairperson of the CCP Board is the Head of CCP The head of the CCP is the Chairperson of its Board. PD 15 and its various amendments constitute the Chairperson of the Board as the head of CCP. Thus, Section 8 of PD 15 provides: Appointment of Personnel. The Chairman, with the confirmation of the Board, shall have the power to appoint all officers, staff and personnel of the Center with such compensation as may be fixed by the Board, who shall be residents of the Philippines. The Center may elect membership in the Government Service Insurance System and if it so elects, its officers and employees who qualify shall have the same rights and privileges as well as obligations as those enjoyed or borne by persons in the government service. Officials and employees of the Center shall be exempt from the coverage of the Civil Service Law and Rules. Section 3 of the Revised Rules and Regulations of the CCP recognizes that the head of the CCP is the Chairman of its Board when it provides:

CHAIRMAN OF THE BOARD. The Board of Trustees shall elect a Chairman who must be one of its members, and who shall be the presiding officer of the Board of Trustees, with power among others, to appoint, within the compensation fixed by the Board, and subject to confirmation of the Board, remove, discipline all officers and personnel of the Center, and to do such other acts and exercise such other powers as may be determined by the Board of Trustees. The Chairman shall perform his duties and exercise his powers as such until such time as the Board of Trustees, by a majority vote, shall elect another Chairman. The Chairman shall be concurrently President, unless the Board otherwise elects another President. Thus, the Chairman of the CCP Board is the "head" of the CCP who may be vested by law, under Section 16, Article VII of the 1987 Constitution, with the power to appoint lower-ranked officers of the CCP. Under PD 15, the CCP is a public corporation governed by a Board of Trustees. Section 6 of PD 15, as amended, states: Board of Trustees. The governing powers and authority of the corporation shall be vested in, and exercised by, a Board of eleven (11) Trustees who shall serve without compensation. The CCP, being governed by a board, is not an agency but a board for purposes of Section 16, Article VII of the 1987 Constitution. Section 6(b) and (c) of PD 15 Repugnant to Section 16, Article VII of the 1987 Constitution Section 6(b) and (c) of PD 15 is thus irreconcilably inconsistent with Section 16, Article VII of the 1987 Constitution. Section 6(b) and (c) of PD 15 empowers the remaining trustees of the CCP Board to fill vacancies in the CCP Board, allowing them to elect their fellow trustees. On the other hand, Section 16, Article VII of the 1987 Constitution allows heads of departments, agencies, commissions, or boards to appoint only "officers lower in rank" than such "heads of departments, agencies, commissions, or boards." This excludes a situation where the appointing officer appoints an officer equal in rank as him. Thus, insofar as it authorizes the trustees of the CCP Board to elect their co-trustees, Section 6(b) and (c) of PD 15 is unconstitutional because it violates Section 16, Article VII of the 1987 Constitution. It does not matter that Section 6(b) of PD 15 empowers the remaining trustees to "elect" and not "appoint" their fellow trustees for the effect is the same, which is to fill vacancies in the CCP Board. A statute cannot circumvent the constitutional limitations on the power to appoint by filling vacancies in a public office through election by the co-workers in that office. Such manner of filling vacancies in a public office has no constitutional basis. Further, Section 6(b) and (c) of PD 15 makes the CCP trustees the independent appointing power of their fellow trustees. The creation of an independent appointing power inherently conflicts with the President's power to appoint. This inherent conflict has spawned recurring controversies in the appointment of CCP trustees every time a new President assumes office. In the present case, the incumbent President appointed the Endriga group as trustees, while the remaining CCP trustees elected the same Endriga group to the same positions. This has been the modus vivendi in filling vacancies in the CCP Board, allowing the President to appoint and the CCP Board to elect the trustees. In effect, there are two appointing powers over the same set of officers in the Executive branch. Each appointing power insists on exercising its own power, even if the two powers are irreconcilable. The Court must put an end to this recurring anomaly. The President's Power of Control There is another constitutional impediment to the implementation of Section 6(b) and (c) of PD 15. Under our system of government, all Executive departments, bureaus, and offices are under the control of the President of the Philippines. Section 17, Article VII of the 1987 Constitution provides: The President shall have control of all the executive departments, bureaus, and offices . He shall ensure that the laws be faithfully executed. (Emphasis supplied) The presidential power of control over the Executive branch of government extends to all executive employees from the Department Secretary to the lowliest clerk. 35 This constitutional power of the President is self-executing and does not require any implementing law. Congress cannot limit or curtail the President's power of control over the Executive branch.36 The 1987 Constitution has established three branches of government the Executive, Legislative and Judicial. In addition, there are the independent constitutional bodies like the Commission on Elections, Commission on Audit, Civil Service Commission, and the Ombudsman. Then there are the hybrid or quasi-judicial agencies,37 exercising jurisdiction in specialized areas, that are under the Executive branch for administrative supervision purposes, but whose decisions are reviewable by the courts. Lastly, there are the local government units, which under the Constitution enjoy local autonomy38 subject only to limitations Congress may impose by law.39 Local government units are subject to general supervision by the President. 40 Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial branches, or must belong to one of the independent constitutional bodies, or must be a quasi-judicial body or local government unit. Otherwise, such government office, entity, or agency has no legal and constitutional basis for its existence. The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local government unit. Thus, the CCP must fall under the Executive branch. Under the Revised Administrative Code of 1987, any agency "not placed by law or order creating them under any specific department" falls "under the Office of the President." 41 Since the President exercises control over "all the executive departments, bureaus, and offices," the President necessarily exercises control over the CCP which is an office in the Executive branch. In mandating that the President "shall have control of all executive x x x offices," Section 17, Article VII of the 1987 Constitution does not exempt any executive office one performing executive functions outside of the independent constitutional bodies from the President's power of control. There is no dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial functions.

The President's power of control applies to the acts or decisions of all officers in the Executive branch. This is true whether such officers are appointed by the President or by heads of departments, agencies, commissions, or boards. The power of control means the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion.42 In short, the President sits at the apex of the Executive branch, and exercises "control of all the executive departments, bureaus, and offices." There can be no instance under the Constitution where an officer of the Executive branch is outside the control of the President. The Executive branch is unitary since there is only one President vested with executive power exercising control over the entire Executive branch.43 Any office in the Executive branch that is not under the control of the President is a lost command whose existence is without any legal or constitutional basis. The Legislature cannot validly enact a law that puts a government office in the Executive branch outside the control of the President in the guise of insulating that office from politics or making it independent. If the office is part of the Executive branch, it must remain subject to the control of the President. Otherwise, the Legislature can deprive the President of his constitutional power of control over "all the executive x x x offices." If the Legislature can do this with the Executive branch, then the Legislature can also deal a similar blow to the Judicial branch by enacting a law putting decisions of certain lower courts beyond the review power of the Supreme Court. This will destroy the system of checks and balances finely structured in the 1987 Constitution among the Executive, Legislative, and Judicial branches. Of course, the President's power of control does not extend to quasi-judicial bodies whose proceedings and decisions are judicial in nature and subject to judicial review, even as such quasi-judicial bodies may be under the administrative supervision of the President. It also does not extend to local government units, which are merely under the general supervision of the President. Section 6(b) and (c) of PD 15, which authorizes the trustees of the CCP Board to fill vacancies in the Board, runs afoul with the President's power of control under Section 17, Article VII of the 1987 Constitution. The intent of Section 6(b) and (c) of PD 15 is to insulate the CCP from political influence and pressure, specifically from the President.44 Section 6(b) and (c) of PD 15 makes the CCP a self-perpetuating entity, virtually outside the control of the President. Such a public office or board cannot legally exist under the 1987 Constitution. Section 3 of PD 15, as amended, states that the CCP "shall enjoy autonomy of policy and operation x x x." 45 This provision does not free the CCP from the President's control, for if it does, then it would be unconstitutional. This provision may give the CCP Board a free hand in initiating and formulating policies and undertaking activities, but ultimately these policies and activities are all subject to the President's power of control. The CCP is part of the Executive branch. No law can cut off the President's control over the CCP in the guise of insulating the CCP from the President's influence. By stating that the "President shall have control of all the executive x x x offices," the 1987 Constitution empowers the President not only to influence but even to control all offices in the Executive branch, including the CCP. Control is far greater than, and subsumes, influence. WHEREFORE, we GRANT the petition in G.R. No. 139554. We declare UNCONSTITUTIONAL Section 6(b) and (c) of Presidential Decree No. 15, as amended, insofar as it authorizes the remaining trustees to fill by election vacancies in the Board of Trustees of the Cultural Center of the Philippines. In view of this ruling in G.R. No. 139554, we find it unnecessary to rule on G.R. No. 139565. SO ORDERED.

Republic of the Philippines SUPREME COURT Baguio City EN BANC G.R. No. 149036 April 2, 2002

MA. J. ANGELINA G. MATIBAG, petitioner, vs. ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capacity as Officer-In-Charge, Finance Services Department of the Commission on Elections, respondents. CARPIO, J.: The Case Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for brevity) questions the constitutionality of the appointment and the right to hold office of the following: (1) Alfredo L. Benipayo ("Benipayo" for brevity) as Chairman of the Commission on Elections ("COMELEC" for brevity); and (2) Resurreccion Z. Borra ("Borra" for brevity) and Florentino A. Tuason, Jr. ("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions the legality of the appointment of Velma J. Cinco1 ("Cinco" for brevity) as Director IV of the COMELECs Education and Information Department ("EID" for brevity). The Facts On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID. On February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as Director IV of EID in a "Temporary" capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed again the appointment of petitioner to the same position in a "Temporary" capacity.2 On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman,3 and Borra4 and Tuason5 as COMELEC Commissioners, each for a term of seven years and all expiring on February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC Chairman. Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC Commissioners. The Office of the President submitted to the Commission on Appointments on May 22, 2001 the ad interim appointments of Benipayo, Borra and Tuason for confirmation.6 However, the Commission on Appointments did not act on said appointments. On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the same positions and for the same term of seven years, expiring on February 2, 2008.7 They took their oaths of office for a second time. The Office of the President transmitted on June 5, 2001 their appointments to the Commission on Appointments for confirmation.8 Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on June 8, 2001, President Macapagal Arroyo renewed again the ad interim appointments of Benipayo, Borra and Tuason to the same positions.9 The Office of the President submitted their appointments for confirmation to the Commission on Appointments.10 They took their oaths of office anew. In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 2001 11 addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID, designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. COMELEC EID Commissioner-inCharge Mehol K. Sadain objected to petitioners reassignment in a Memorandum dated April 14, 200112 addressed to the COMELEC en banc. Specifically, Commissioner Sadain questioned Benipayos failure to consult the Commissioner-in-Charge of the EID in the reassignment of petitioner. On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment to the Law Department.13 Petitioner cited Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001, reminding heads of government offices that "transfer and detail of employees are prohibited during the election period beginning January 2 until June 13, 2001." Benipayo denied her request for reconsideration on April 18, 2001, 14 citing COMELEC Resolution No. 3300 dated November 6, 2000, which states in part: "NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated functions during the prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after due notice and hearing." Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated April 23, 2001.15 Petitioner also filed an administrative and criminal complaint16 with the Law Department17 against Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil service laws, rules and regulations. During the pendency of her complaint before the Law Department, petitioner filed the instant petition questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the independence of the COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members. Petitioner also assails as illegal her removal as Director IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges the designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the disbursements made by COMELEC Finance Services Department Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other emoluments.

In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad interim appointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners, respectively, for a term of seven years expiring on February 2, 2008.18 They all took their oaths of office anew. The Issues The issues for resolution of this Court are as follows: 1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial review in constitutional cases; 2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by the President amounts to a temporary appointment prohibited by Section 1 (2), Article IX-C of the Constitution; 3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution; 4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and her reassignment to the Law Department is illegal and without authority, having been done without the approval of the COMELEC as a collegial body; 5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in continuing to make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction. First Issue: Propriety of Judicial Review Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of judicial review in constitutional cases. Out of respect for the acts of the Executive department, which is co-equal with this Court, respondents urge this Court to refrain from reviewing the constitutionality of the ad interim appointments issued by the President to Benipayo, Borra and Tuason unless all the four requisites are present. These are: (1) the existence of an actual and appropriate controversy; (2) a personal and substantial interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and (4) the constitutional issue is the lis mota of the case.19Respondents argue that the second, third and fourth requisites are absent in this case. Respondents maintain that petitioner does not have a personal and substantial interest in the case because she has not sustained a direct injury as a result of the ad interim appointments of Benipayo, Borra and Tuason and their assumption of office. Respondents point out that petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to be directly injured by the appointments of these three respondents. Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite the fact that the ad interim appointments of Benipayo, Borra and Tuason were issued as early as March 22, 2001. Moreover, the petition was filed after the third time that these three respondents were issued ad interim appointments. Respondents insist that the real issue in this case is the legality of petitioners reassignment from the EID to the Law Depa rtment. Consequently, the constitutionality of the ad interim appointments is not the lis mota of this case. We are not persuaded. Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where she was placed on detail service.20 Respondents claim that the reassignment was "pursuant to x x x Benipayos authority as Chairman of the Commission on Elections, and as the Commissions Chief Executive Of ficer."21 Evidently, respondents anchor the legality of petitioners reassignment on Benipayos authority as Chairman of the COMELEC. T he real issue then turns on whether or not Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by the Constitution. On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordan ce with the Constitution, then petitioners reassignment is legal and she has no cause to complain provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake in the resolution of the constitutionality of Benipayos assumption of office. Petitioners personal and substantial injury, if Benipayo is not the lawful CO MELEC Chairman, clothes her with the requisite locus standi to raise the constitutional issue in this petition. Respondents harp on petitioners belated act of questioning the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001, when the first ad interim appointments were issued as early as March 22, 2001. However, it is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, "if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be considered on appeal."22 Petitioner questioned the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when she filed her petition before this Court, which is the earliest opportunity for pleading the constitutional issue before a competent body. Furthermore, this Court may determine, in the exercise of sound discretion, the time when a constitutional issue may be passed upon. 23 There is no doubt petitioner raised the constitutional issue on time. Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos ad interim appointment and assumption of office. Unless the constitutionality of Benipayos ad interim appointment and assumption of office is resolved, the legality of petitioners reassignment from the EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very constitutional issue raised by petitioner. In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may be put in doubt if the constitutional i ssue raised by petitioner is left unresolved. In keeping with this Courts duty to determine whether other agencies of government have remained within the limits of the Constitution and have not abused the discretion given them, this Court may

even brush aside technicalities of procedure and resolve any constitutional issue raised.24 Here the petitioner has complied with all the requisite technicalities. Moreover, public interest requires the resolution of the constitutional issue raised by petitioner. Second Issue: The Nature of an Ad Interim Appointment Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows: "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 reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity." (Emphasis supplied) Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure, and can even be disapproved or simply bypassed by the Commission on Appointments. For this reason, petitioner claims that an ad interim appointment is temporary in character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of the Constitution. Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other two constitutional commissions, namely the Civil Service Commission and the Commission on Audit. The last sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D providing for the creation of the Civil Service Commission and the Commission on Audit, respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee cannot assume office until his appointment is confirmed by the Commission on Appointments for only then does his appointment become permanent and no longer temporary in character. The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission on Appointments can gua rantee the independence of the COMELEC. A confirmed appointee is beyond the influence of the President or members of the Commission on Appointments since his appointment can no longer be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of both the appointing and confirming powers since his appointment can be terminated at any time for any cause. In the words of petitioner, a Sword of Damocles hangs over the head of every appointee whose confirmation is pending with the Commission on Appointments. We find petitioners argument without merit. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second paragraph of Section 16, Article VII of the Constitution provides as follows: "The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." (Emphasis supplied) Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis. More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In Summers vs. Ozaeta,25 decided on October 25, 1948, we held that: "x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of th e Constitution, which provides that the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character . An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an acting appointment which is merely temporary, good until another permanent appointment is issued." (Emphasis supplied) The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments,26 this Court elaborated on the nature of an ad interim appointment as follows: "A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session and when it is in recess. In the former, the President nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office. It is not so with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such office is complete. In the language of the Constitution, the appointment is effective until disapproval by the Commission on Appointments or until the next adjournment of the Congress." Petitioner cites Blacks Law Dictionary which defines the term "ad interim" to mean "in the meantime" or "for the time being." Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,27 where we explained that: "x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several ad interim appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word ad interim which creates such belief. The term is defined by Black to mean "in the meantime" or "for the time being". Thus, an officer ad interim is one appointed to fill a vacancy,

or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Blacks Law Dic tionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Estebans appointments, th e term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. x x x." (Emphasis supplied) Thus, the term "ad interim appointment", as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court of Appeals,28 where the Court stated: "We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private respondents appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Of fice No. 12. Petitioners submission that private respondents ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent but their terms are only until the Board disapproves them." (Emphasis supplied) An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that "[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law." 29 Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office.30 Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees. While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power. 31 A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the President from making to the three independent constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,32 this Court struck down as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. This Court ruled that: "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. xxx 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 guarantee is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines." Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution, which did not have a provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless declared unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court ruled that the designation of an acting Commissioner would undermine the independence of the COMELEC and hence violate the Constitution. We declared then: "It would be more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily." (Emphasis supplied) In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason were extended permanent appointments during the recess of Congress. They were not appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac34 and Solicitor General Felix Bautista in Nacionalista Party vs. Bautista.35 The ad interim appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution which authorizes the President, during the recess of Congress, to make appointments that take effect immediately. While the Constitution mandates that the COMELEC "shall be independent"36, this provision should be harmonized with the Presidents power to extend ad interim appointments. To hold that the independence of the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the appointees can assume office will negate the Presidents power to make ad interim appointments. This is contrary to the rule on statutory construction to give meaning and effect to every provision of the law. It will also run counter to the clear intent of the framers of the Constitution. The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to confirmation by the Commission on Appointments - did not provide for ad interim appointments. The original intention of the framers of the Constitution was to do away with ad interim appointments because the plan was for Congress to remain in session throughout the year except for a brief 30-day compulsory recess. However, because of the need to avoid disruptions in essential government services, the framers of the Constitution thought it wise to reinstate the provisions of the 1935 Constitution on ad interim appointments. The following discussion during the deliberations of the Constitutional Commission elucidates this:

"FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it necessary to provide for ad interim appointments? Perhaps there should be a little discussion on that. xxx MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in terms of anticipating interruption of government business, considering that we are not certain of the length of involuntary recess or adjournment of the Congress. We are certain, however, of the involuntary adjournment of the Congress which is 30 days, but we cannot leave to conjecture the matter of involuntary recess. FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a formula x x x. xxx MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after conferring with the Committee, Commissioner Aquino and I propose the following amendment as the last paragraph of Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS. This is otherwise called the ad interim appointments. xxx THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none; the amendment is approved."37 (Emphasis supplied) Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was for the purpose of avoiding interruptions in vital government services that otherwise would result from prolonged vacancies in government offices, including the three constitutional commissions. In his concurring opinion in Guevara vs. Inocentes,38 decided under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad interim appointments in this manner: "Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the session of Congress, the evil sought to be avoided interruption in the discharge of essential functions may take place. Because the same evil would result if the appointments ceased to be effective during the session of Congress and before its adjournment. Upon the other hand, once Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of other ad interim appointments or reappointments." (Emphasis supplied) Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided the interruption of essential government services in the May 2001 national elections. Following the decision of this Court in Gaminde vs. Commission on Appointments,39 promulgated on December 13, 2000, the terms of office of constitutional officers first appointed under the Constitution would have to be counted starting February 2, 1987, the date of ratification of the Constitution, regardless of the date of their actual appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC, including the Chairman, would end on February 2, 2001.40 Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve, pursuant to her appointment papers, until February 15, 2002,41 the original expiry date of the term of her predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of Commissioner Julio F. Desamito was November 3, 2001. 42 The original expiry dates of the terms of office of Chairperson Demetriou and Commissioners Flores and Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-person COMELEC, with national elections looming less than three and one-half months away. To their credit, Chairperson Demetriou and Commissioner Flores vacated their offices on February 2, 2001 and did not question any more before this Court the applicability of the Gaminde ruling to their own situation. In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson Demetriou stated that she was vacating her office on February 2, 2001, as she believed any delay in choosing her successor might create a "constitutional crisis" in view of the proximity of the May 2001 national elections. Commissioner Desamito chose to file a petition for intervention44 in the Gaminde case but this Court denied the intervention. Thus, Commissioner Desamito also vacated his office on February 2, 2001. During an election year, Congress normally goes on voluntary recess between February and June considering that many of the members of the House of Representatives and the Senate run for re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001. 45 Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally extended ad interim appointments only on March 22, 2001, to be confirmed by the Commission on Appointments before the May 14, 2001 elections. If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC, there would only have been one division functioning in the COMELEC instead of two during the May 2001 elections. Considering that the Constitution requires that "all x x x election cases shall be heard and decided in division",46 the remaining one division would have been swamped with election cases. Moreover, since under the Constitution motions for reconsideration "shall be decided by the Commission en banc", the mere absence of one of the four remaining members would have prevented a quorum, a less than ideal situation considering that the Commissioners are expected to travel around the country before, during and after the elections. There was a great probability that disruptions in the conduct of the May 2001 elections could occur because of the three vacancies in the COMELEC. The successful conduct of the May 2001 national elections, right after the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding and strengthening our democracy.

Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim appointments prevented the occurrence of the very evil sought to be avoided by the second paragraph of Section 16, Article VII of the Constitution. This power to make ad interim appointments is lodged in the President to be exercised by her in her sound judgment. Under the second paragraph of Section 16, Article VII of the Constitution, the President can choose either of two modes in appointing officials who are subject to confirmation by the Commission on Appointments. First, while Congress is in session, the President may nominate the prospective appointee, and pending consent of the Commission on Appointments, the nominee cannot qualify and assume office. Second, during the recess of Congress, the President may extend an ad interim appointment which allows the appointee to immediately qualify and assume office. Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a matter within the prerogative of the President because the Constitution grants her that power. This Court cannot inquire into the propriety of the choice made by the President in the exercise of her constitutional power, absent grave abuse of discretion amounting to lack or excess of jurisdiction on her part, which has not been shown in the instant case. The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former President Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E. Abueg.47 Former President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.48 Former President Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion. 49 The Presidents power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the appointing and confirming powers. This situation, however, is only for a short period - from the time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its consent. The Constitution itself sanctions this situation, as a trade-off against the evil of disruptions in vital government services. This is also part of the check-andbalance under the separation of powers, as a trade-off against the evil of granting the President absolute and sole power to appoint. The Constitution has wisely subjected the Presidents appointing power to the checking power of the legislature. This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold confirmed appointments, and not one President will appoint all the COMELEC members. 50 In the instant case, the Commission on Appointments had long confirmed four51 of the incumbent COMELEC members, comprising a majority, who could now be removed from office only by impeachment. The special constitutional safeguards that insure the independence of the COMELEC remain in place.52 The COMELEC enjoys fiscal autonomy, appoints its own officials and employees, and promulgates its own rules on pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased during their tenure. In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting appointments prohibited by Section 1 (2), Article IX-C of the Constitution. Third Issue: The Constitutionality of Renewals of Appointments Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments and their subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution, which provides as follows: "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 reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last members for three years, without reappointment. X x x." (Emphasis supplied) Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad interim appointment can no longer be renewed because this will violate Section 1 (2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts that this is particularly true to permanent appointees who have assumed office, which is the situation of Benipayo, Borra and Tuason if their ad interim appointments are deemed permanent in character. There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer renew the appointment not because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on Appointments to withhold its consent to the appointment. An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments, which provides as follows: "Section 17. Unacted Nominations or Appointments Returned to the President . Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and , unless new nominations or appointments are made, shall not again be considered by the Commission." (Emphasis supplied) Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again if the President renews the appointment. It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs. Inocentes53 why by-passed ad interim appointees could be extended new appointments, thus: "In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not continue holding office over the positive objection of the Commission. It ceases, also, upon "the next adjournment of the Congress", simply because the President may then issue new

appointments - not because of implied disapproval of the Commission deduced from its inaction during the session of Congress, for, under the Constitution, the Commission may affect adversely the interim appointments only by action, never by omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto, then the President could no longer appoint those so by-passed by the Commission. But, the fact is that the President may reappoint them, thus clearly indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance that upon said adjournment of the Congress, the President is free to make ad interim appointments or reappointments." (Emphasis supplied) Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of the present Constitution on ad interim appointments was lifted verbatim.54 The jurisprudence under the 1935 Constitution governing ad interim appointments by the President is doubtless applicable to the present Constitution. The established practice under the present Constitution is that the President can renew the appointments of by-passed ad interim appointees. This is a continuation of the well-recognized practice under the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on Appointments but vested sole appointing power in the President. The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners shall be appointed x x x for a term of seven years without reappointment." (Emphasis supplied) There are four situations where this provision will apply. The first situation is where an ad interim appointee to the COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will then be actually serving more than seven years. The second situation is where the appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The third situation is where the appointee is confirmed to serve the unexpired term of someone who died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The fourth situation is where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision refers to the first appointees under the Constitution whose terms of office are less than seven years, but are barred from ever being reappointed under any situation . Not one of these four situations applies to the case of Benipayo, Borra or Tuason. The framers of the Constitution made it quite clear that any person who has served any term of office as COMELEC member whether for a full term of seven years, a truncated term of five or three years, or even for an unexpired term of any length of time can no longer be reappointed to the COMELEC. Commissioner Foz succinctly explained this intent in this manner: "MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case of Visarra vs. Miraflor, to the effect that the prohibition on reappointment applies only when the term or tenure is for seven years. But in cases where the appointee serves only for less than seven years, he would be entitled to reappointment. Unless we put the qualifying words "without reappointment" in the case of those appointed, then it is possible that an interpretation could be made later on their case, they can still be reappointed to serve for a total of seven years . Precisely, we are foreclosing that possibility by making it clear that even in the case of those first appointed under the Constitution, no reappointment can be made."55 (Emphasis supplied) In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De Vera57 that a "[r]eappointment is not prohibited when a Commissioner has held office only for, say, three or six years, provided his term will not exceed nine years in all." This was the interpretation despite the express provision in the 1935 Constitution that a COMELEC member "shall hold office for a term of nine years and may not be reappointed." To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2), Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person previously appointed for a term of seven years. The second phrase prohibits reappointment of any person previously appointed for a term of five or three years pursuant to the first set of appointees under the Constitution. In either case, it does not matter if the person previously appointed completes his term of office for the intention is to prohibit any reappointment of any kind. However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on Appointments. The phrase "without reappointment" applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and negate the Presidents power to make ad interim appointments. In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad interim appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the President will certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This will nullify the constitutional power of the President to make ad interim appointments, a power intended to avoid disruptions in vital government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services. The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment for those who have been previously appointed and confirmed even if they served for less than seven years. The

second is to insure that the members of the three constitutional commissions do not serve beyond the fixed term of seven years. As reported in the Journal of the Constitutional Commission, Commissioner Vicente B. Foz, who sponsored58the proposed articles on the three constitutional commissions, outlined the four important features of the proposed articles, to wit: "Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the three Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that) appropriations shall be automatically and regularly released to the Commission in the same manner (as) provided for the Judiciary; 2) fixed term of office without reappointment on a staggered basis to ensure continuity of functions and to minimize the opportunity of the President to appoint all the members during his incumbency; 3) prohibition to decrease salaries of the members of the Commissions during their term of office; and 4) appointments of members would not require confirmation."59 (Emphasis supplied) There were two important amendments subsequently made by the Constitutional Commission to these four features. First, as discussed earlier, the framers of the Constitution decided to require confirmation by the Commission on Appointments of all appointments to the constitutional commissions. Second, the framers decided to strengthen further the prohibition on serving beyond the fixed seven-year term, in the light of a former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven years. The following exchange in the deliberations of the Constitutional Commission is instructive: "MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsors attention, first of all, to Se ction 2 (2) on the Civil Service Commission wherein it is stated: "In no case shall any Member be appointed in a temporary or actin g capacity." I detect in the Committees proposed resolutions a constitutional hangover, if I may use the term, from the past administration. Am I correct in concluding that the reason the Committee introduced this particular provision is to avoid an incident similar to the case of the Honorable Francisco Tantuico who was appointed in an acting capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and then in 1980, was appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment to (its) logical conclusion, he occupied that position for about 12 years in violation of the Constitution? MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is appointed to any of the commissions does not serve beyond 7 years."60 (Emphasis supplied) Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner: "MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no reappointment of any kind and, therefore as a whole there is no way that somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this does not happen by including in the appointment both temporary and acting capacities."61 (Emphasis supplied) Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the other hand, the prohibition on temporary or acting appointments is intended to prevent any circumvention of the prohibition on reappointment that may res ult in an appointees total term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific - reappointment of any kind and exceeding ones term in office beyond the maximum period of seven years. Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the screws on those who might wish to extend their terms of office. Thus, the word "designated" was inserted to plug any loophole that might be exploited by violators of the Constitution, as shown in the following discussion in the Constitutional Commission: "MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the words OR DESIGNATED so that the whole sentence will read: "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity." THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say? MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any Member be appointed in a temporary or acting capacity." MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a distinction between an appointment and a designation. The Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the Minister of Justice opined that it did not because he was only designated during the time that he acted as Commissioner on Audit. So, in order to erase that distinction between appointment and designation, we should specifically place the word so that there will be no more ambiguity. "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity." MR. FOZ: The amendment is accepted, Mr. Presiding Officer. MR. DE LOS REYES: Thank you. THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the amendment is approved."62 The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on reappointments because there were no previous appointments that were confirmed by the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The same ad interim appointments and renewals of appointments will also not breach the seven-year term limit because all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008.63 Any delay in their confirmation will not extend the expiry date of their terms of office. Consequently, there is no danger whatsoever that the renewal of the ad interim appointments of these three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad interim appointment of these three respondents, for so long as their terms of office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution. Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize such reassignment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal. Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code, the Chairman of the COMELEC is vested with the following power: "Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief Executive Officer of the Commission, shall: xxx (4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the Civil Service Law." (Emphasis supplied) The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the COMELEC en banc. Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity.64 Petitioner is not a Career Executive Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission. 65 Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,66 this Court held that: "As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be considered permanent, and she can claim no security of tenure in respect of that position. As held in Achacoso v. Macaraig: It is settled that a permanent appointment can be issued only to a pers on who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withd rawn at will by the appointing authority and at a moments notice, conformably to established jurisprudence x x x. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place, or as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated x x x." Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to her situation. Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the Omnibus Election Code, which provides as follows: "Section 261. Prohibited Acts. The following shall be guilty of an election offense: xxx (h) Transfer of officers and employees in the civil service - Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission." Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC personnel during the election period.67 Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period. Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dat ed November 6, 2000,68 exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The resolution states in part: "WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows: xxx Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: xxx

(h) Transfer of officers and employees in the civil service Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon approval of the Commission. WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001; WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on Elections during the prohibited period in order that it can carry out its constitutional duty to conduct free, orderly, honest, peaceful and credible elections; "NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated functions during the prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after due notice and hearing." (Emphasis supplied) The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised Administrative Code,69 the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot legally do. COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Electi on Code. For the same reason, Benipayos order designating Cinco Officer-in-Charge of the EID is legally unassailable. Fifth Issue: Legality of Disbursements to Respondents Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance Services Department of the Commission on Elections, did not act in excess of jurisdiction in paying the salaries and other emoluments of Benipayo, Borra, Tuason and Cinco. WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-25577 March 15, 1966

ONOFRE P. GUEVARA, petitioner, vs. RAOUL M. INOCENTES, respondent. Ambrosia Padilla and Onofre Guevara for the petitioner. Office of the Solicitor General for the respondent. BAUTISTA ANGELO, J.: This decision is written in keeping with the statement we made in our resolution dated February 16, 1966. Petitioner was extended an ad interim appointment as Undersecretary of Labor by the former Executive on November 18, 1965, having taken his oath of office on November 25 of the same year, and considering that the ad interim appointment for the same position extended to respondent by the incumbent Executive on January 23, 1966 is invalid in spite of Memorandum Circular No. 8 issued by the latter on the same date declaring all ad interim appointments made by the former Executive as having lapsed with the adjournment of the special session of Congress at about midnight of January 22, 1966, petitioner brought before this Court the instant petition for quo warranto seeking to be declared the person legally entitled to said office of Undersecretary of Labor. The petition is predicated on the following grounds: (1) under Article VII, Section 10(4) of the Constitution, petitioner's ad interim appointment is valid and permanent and may only become ineffective either upon express disapproval by the Commission on Appointments or upon the adjournment of the regular session of Congress of 1966; (2) here there has been no express disapproval by the Commission on Appointments because the same has never been constituted during the special session called by President Marcos in his Proclamation No. 2, series of 1966; and (3) there has been no adjournment of the Congress as contemplated in the Constitution because (a) the aforesaid special session was suspended by the House on Saturday, January 22, 1966 at 10:55 p.m. to be resumed on Monday, January 24, 1966 at 10:00 a.m.; (b) the resolution approved by the Senate on January 23, 1966 at past 2:00 a.m. for adjournment sine die is not the adjournment contemplated in Article VII, Section 10(a) of our Constitution; (c) the suspension by the House or the adjournment by the Senate to resume the session on January 24, 1966 at 10:00 a.m. meant the end of the special session and the start of the regular session as a continuous session without any interruption; and (d) the phrase "until the next adjournment of the Congress" must be related with the phrase "until disapproval by the Commission on Appointments" so that the adjournment contemplated should refer to a regular session during which the Commission on Appointments may be organized and allowed to discharge its functions as such. Respondent, on the other hand, set up the following defenses: (1) petitioner's ad interim appointment lapsed when Congress adjourned its last special session called under Proclamation No. 2 of President Marcos; (2) an ad interim appointment ceases to be valid after each term of Congress and so petitioner's appointment must have lapsed as early as December 30, 1965; (3) petitioner's ad interim appointment as well as others made under similar conditions, is contrary to morals, good customs and public policy, and hence null and void; and (4) petitioner's appointment is void in the light of the doctrine laid down in Rodriguez, Jr. vs. Quirino, G.R. No. L-19800 October 28, 1953. After due deliberation, the Court resolved that the ad interim appointment extended to petitioner on November 18, 1965 by the former Executive lapsed when the special session of Congress adjourned sine die at about midnight of January 22, 1966, as embodied in our resolution dated February 16, 1966. We will now elaborate on the reasons expressed in said resolution. The important provision to be considered is Article VII, Section 10, Subsection 4 of our Constitution, which provides: The President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. A perusal of the above-quoted provision would at once reveal that it is the clear intent of the framers of our Constitution to make a recess appointment effective only (a) until disapproval by the Commission on Appointments, or (b) until the next adjournment of Congress, and never a day longer regardless of the nature of the session adjourned. And this is so considering the plain language of the aforesaid provision which is free from any ambiguity in the light of the well-settled rule of statutory construction that "when the intention of the legislature is so apparent from the face of the statute that there can be no question as to its meaning there is no room for construction" (Vol. 2, Sutherland, Statutory Construction, p. 316). Hence, the above provision contemplates two modes of termination of an ad interim appointment, or of one made during the recess of Congress, which are completely separate from, and independent of, each other. And while during the special session called under proclamation No. 2 no Commission on Appointments was organized by Congress, the second mode of termination, however, had its constitutional effect, as when Congress adjourned sine die at about midnight of January 22. 1966. Such adjournment, in legal contemplation, had the effect of terminating petitioner's appointment thereby rendering it legally ineffective. Petitioner's theory that the first mode of termination consisting in the disapproval by the Commission on Appointments should be inseparately related with the clause "until the next adjournment of Congress" in the sense that the Commission has to be first organized in order that the last mode may operate is untenable considering that the latter is not dependent upon, nor influenced in any manner by the operation of the former. As already stated, the two modes of termination are completely separate from and independent of each other. If the framers of the Constitution had intended to make the operation of the second clause dependent upon the prior constitution of the Commission on Appointments they should have so stated in clear terms considering that the first clause implies a positive act of the Commission, while the second an entirely separate and independent act of Congress. Indeed, the theory of petitioner, if carried to its logical conclusion, may result into the anomaly that, should Congress be controlled by a party not inclined to organize said Commission, or should there arise a group which for reasons of its own indulges in obstructionism, the Commission on Appointments contemplated in the Constitution is never organized as a consequence of the action of either, any appointment made during the recess of

Congress would never run the test of legislative scrutiny and would thereby then be always considered permanent even if it is extended ad interim, a result which, to be sure, was never intended by the framers of our Constitution. It thus becomes imperative that we avoid such absurd result. It is true that the provision of the Constitution we are now considering in speaking of the mode of termination epitomized in the phrase "until the next adjournment of the Congress" does not make any reference to any specific session of the Congress, whether regular or special, but such silence is of no moment, for it is a wellknown maxim in statutory construction that when the law does not distinguish we should not distinguish. UBI LEX NON DISTINGUIT NEC NOS DISTINGUERE DEBEMUS (Robles vs. Zambales Chromite Mining Company, et al., G. R. No. L-12560, September 30, 1958). Consequently, it is safe to conclude that the framers of our Constitution in employing merely the word adjournment as a mode of terminating an appointment made during the recess of Congress had in mind either the regular or special session, and not simply the regular one as contended by petitioner. Under our tripartite form of government predicated on the principle of separation of powers the power to appoint is inherently an executive function while the power to confirm or reject appointments belongs to the legislative department, the latter power having been conferred as a check on the former. This power to check may be exercised through the members of both Houses in the Commission on Appointments. But although the Commission on Appointments is provided for in the Constitution, its organization requires congressional action, and once organized, by express provision of the Constitution, it "shall meet only while Congress is in session." Consequently, if for any reason Congress adjourns a regular or special session without organizing the Commission on Appointments, Congress should be deemed to have impliedly exercised said power to check by allowing the ad interim appointments to lapse as provided for in the Constitution. The next important inquiry is: Since Congress in its special session held under Proclamation No. 2 of the President, series of 1966, did not deem it wise to organize the Commission on Appointments to act on the recess appointments made by the former Executive, can it be said that Congress is deemed to have impliedly exercised its power to check on such recess appointments when it adjourned its special session at about 12:00 o'clock midnight of January 22, 1966? The answer must of necessity be in the affirmative inasmuch as that special session actually adjourned in legal contemplation at about 12:00 midnight of January 22, 1966 considering that the Senate adjourned sine die at about said hour. Although the House allegedly suspended its session at 10:55 p.m. on January 22, 1966 to be resumed on Monday, January 24, 1966, at 10:00 a.m., Congress cannot be considered to be in special session subsequently to January 22 for the reason that the House without the Senate which had adjourned sine die, is not "Congress." Indeed, when the Senate adjourned at 12:00 midnight on January 22, 1966 this adjournment should be considered as the "next adjournment of the Congress" of the special session notwithstanding the alleged suspension of the session earlier by the House for the reason that neither the House nor the Senate can hold session independently of the other in the same manner as neither can transact any legislative business after the adjournment of the other. None other than President Macapagal and Speaker Cornelio Villareal expressed such opinion when as members of the Lower House in 1954 they expoused and defended the same on the floor as can be seen from the following transcript of the congressional record: Mr. MACAPAGAL . . . Since the Senate has, by its own responsibility, adjourned one and a half hours ago, therefore, under the present facts, in our Constitution this House is automatically adjourned, and therefore it is improper and illegal for us to continue the proceedings farther. xxx xxx xxx

Mr. VILLAREAL Mr. Speaker, although it is true that I do not want to appeal from the ruling of the Chair, nonetheless, I maintain that our actuations from the time we approved that resolution will be illegal acts, and I do not want this Congress to commit illegal acts because it will affect the dignity of this Chamber. We are not unaware of the facts. I invite the Presiding Officer and everybody here to go to the Senate now, and if they accept my challenge, let us go so that I can prove to them that there is not one ghost of any Senator in that Chamber. The Senate has actually adjourned, Mr. Speaker, and are we to have a fiction here that the Senators are still holding a session? We approved that resolution of adjournment before twelve o'clock tonight knowing that the Senate adjourned two or three hours ago. Are we crazy here to believe that the Senators are still holding sessions? How can we in conscience justify our actuations here that we are still doing something for the benefit of the people when in fact and in truth we are not because we cannot do so? . . . Mr. Speaker, let us be frank; let us be honest to ourselves; let us not ridicule ourselves; let us adjourn now because we having nothing to do and all that we will do will be illegal beginning now. . . . Mr. Speaker. I honestly believe that legally we cannot do anything any further, and if I am the author of a bill pending approval, I would not submit the bill for passage now because that will be the subject of litigation in court as to whether such approval will be legal or not, and I would never risk my committee report to be submitted after the approval of that resolution, knowing fully well that actually and physically that Upper Chamber has already adjourned. (Congressional Record, House of Representatives, 3rd Congress, Republic of the Philippines, First Regular and First Special Sessions, Vol. I, pp. 4091 and 4094).1wph1.t As a corollary, the theory that there was a continuous session without any interruption when the house allegedly suspended its session at 10:55 p.m. on January 22, 1966 to be resumed on Monday, January 24, 1966 at 10:00 a.m. cannot be accepted, because such theory runs counter to well-established parliamentary precedents and practice. Thus, for one thing, between January 22, 1966 at 10:55 p.m. and January 24, 1966 at 10:35 a.m. when the House opened its regular session, there intervened January 23, 1966, which was Sunday, and as such is expressly excluded by the Constitution as a session day of Congress. For another, it is imperative that there be a "constructive recess" between a special and regular session, as when a regular session succeeds immediately a special session or vice-versa, and so a special session cannot be held immediately before a regular session without any interruption nor can both be held simultaneously together. Hinds' Precedents has the following to say on the matter: The commissions granted during the recess prior to the convening of Congress in extraordinary session November 9, 1903, of course furnished lawful warrant for the assumption by the persons named therein of the duties of the offices to which they were, respectively, commissioned. Their names were regularly sent to the Senate thereafter. If confirmed, of course they would hold under appointment initiated by the nomination without any regard to the recess commission. If not confirmed, their right to hold under the recess nomination absolutely ended at 12 o'clock meridian on the 7th of December, 1903, for at that hour the extraordinary session ended and the regular session of Congress began by operation of law. An extraordinary session and a regular session can not coexist, and the beginning of the regular session at 12 o'clock was the end of the extraordinary session; not a constructive end of it, but an actual end of it. At 12 o'clock December 7 the President pro tempore of the Senate said: Senators, the hour provided by law for the meeting of the first regular session of the Fifty-eighth Congress having arrived, I declare the extraordinary session adjourned without day.

Aside from the statement upon the record that the "hour had struck" which marked the ending of the one and the beginning of the other, the declaration of the President pro tempore was without efficacy. It did not operate to adjourn without day either the Congress or the Senate. Under the law the arrival of the hour did both. The constitutional provision that the commission shall expire at the end of the next session is self-executing, and when the session expires the right to hold under the commission expires with it. If there be no appreciable point of time between the end of one session and the beginning of another, since of necessity one ends and another begins, the tenure under the commission as absolutely terminates as if months of recess supervened. (Hinds' Precedents of the House of Representatives of the United States, Vol. V, p. 854.) Considering now petitioner's ad interim appointment and others extended under similar conditions in the light of the doctrine we laid down in the Aytona case, we may say that they were even more irregular than those involved in said case to the extend that they may be avoided even on this ground alone. Thus, while President Garcia only extended 350 ad interim appointments after he had lost the election, President Macapagal made 1,717 ad interim appointments most of which were made only after the elections in November, 1965. As a consequence, the following anomalies were noted: a former presidential assistant was appointed judge of three different salas, another was appointed to a non-existing branch of the Court of First Instance of Pangasinan, while still another who had a pending disbarment case received an ad interim appointment as judge of first instance. This is indeed a far cry from the following admonition we made in the Aytona case: Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December 30, 1961. But it is common sense to believe that after the proclamation of the election of President Macapagal, his was no more than a "caretaker" administration. He was duty bound to prepare for the orderly transfer of authority to the incoming President, and he should not do acts which, he ought to know, would embarrass or obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not for him to use his powers as incumbent President to continue the political warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes. The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments. (Aytona vs. Castillo, et al., G.R. No. L-19313, January 20, 1962.) It is hoped that now and hereafter such excess in the exercise of power should be obviated to avoid confusion, uncertainty, embarrassment and chaos which may cause disruption in the normal function of government to the prejudice of public interest. It is time that such excess be stopped in the interest of the public weal. Wherefore, petition is denied. No costs.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 159940 February 16, 2005

OFFICE OF THE OMBUDSMAN, petitioner, vs. CIVIL SERVICE COMMISSION, Respondent. DECISION CARPIO-MORALES, J.: Before this Court is a petition for certiorari under Rule 65 of the 1997 Revised Rules of Court seeking to set aside and nullify Resolution No. 030919 of the Civil Service Commission (CSC) dated August 28, 2003. The antecedents of the case are as follows: By letter1 dated March 7, 1994 addressed to then Ombudsman Conrado M. Vasquez, the CSC approved the Qualification Standards for several positions in the Office of the Ombudsman (petitioner) including that for Graft Investigation Officer III. The Qualification Standards for said position are: EDUCATION: Bachelor of Laws EXPERIENCE: 5 years of experience in the practice of law, counseling, investigation/ prosecution of cases, hearings of administrative/ criminal cases, legal research or other related work. TRAINING: 24 hours of relevant training ELIGIBILITY: RA 1080 (Bar) The Career Executive Service Board (CESB) subsequently advised the Ombudsman, by letter of May 29, 1996, 2 that pursuant to CSC Memorandum Circular No. 21, s.1994, the position of Graft Investigation Officer III, among other positions in petitioner therein mentioned, was classified as a Career Executive Service (CES) position, hence, governed by the rules of the CES pertaining to eligibility, appointment to CES ranks, and performance evaluation, among other things. 1awphi1.nt On September 29, 1999, the members of the Constitutional Fiscal Autonomy Group (CFAG), namely: the Commission on Elections (COMELEC), CSC, Commission on Audit (COA), Commission on Human Rights (CHR), petitioner and this Court adopted Joint Resolution No. 62 3 reading: JOINT RESOLUTION NO. 62 WHEREAS, the independence of the members of the Constitutional Fiscal Autonomy Group (CFAG) is guaranteed by the Constitution; WHEREAS, the Constitution has several provisions that guarantee and protect such independence, among which are Sections 4 and 5 of Article IX, A thereof, which respectively grant them Fiscal Autonomy and authorize them to appoint their own officials and employees in accordance with law; WHEREAS, Section 7(3), Title I, Book V of the Administrative Code of 1987 enumerates exclusively and restrictively the specific positions under the Career Executive Service, all the holders of which are appointed by the President and are required to have CES eligibility; WHEREAS, in case of Home Insurance Guaranty Corporation vs. Civil Service Commission and Daniel Cruz, G.R. No. 95450, dated 19 March 1993, the Supreme Court nullified the classification by the CSC of the position of Corporate Vice President as belonging to the third level of the Career Executive Services; WHEREAS, the Court declared in the above cited case that said position is not among those enumerated by law as falling under the third level, nor one of those identified by the CES Board as equivalent rank to those listed by law, nor was the incumbent appointed by the President; WHEREAS, in the case of Sixto Brillantes, Jr. vs. Haydee T. Yorac, G.R. No. 93867, dated 18 December 1990, the Supreme Court ruled that "Article IX-A, Sec. 1 of the Constitution expressly describes all Constitutional Commissions as Independent. Although essentiall y executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions." WHEREAS, only the Chairmen and Commissioners of the Constitutional Commissions, the Commission on Human Rights, Justices and Judges, as well as the Ombudsman and his Deputies, are appointed by the President; WHEREAS, the Constitutional Commissions, the Supreme Court, the Commission on Human Rights, and the Office of the Ombudsman are empowered to appoint officials and employees to positions belonging to first level up to third level of their respective agencies, and that they are not presidential appointees;

WHEREAS, Section 22 par. 1, Chapter 5, Subtitle A, Title I, Book V, of the Administrative Code of 1987, provides in part that "[t]he degree of qualifications of an officer or employee shall be determined by the appointing authority on the basis of the qualification standard for the particular positions[,]" and par. 2 thereof provides that [t]he establishment, administration and maintenance of qualification standards shall be the responsibility of the department or agency, with the assistance and approval of the Civil Service Commission;" NOW, THEREFORE, the CFAG jointly resolves: 1. That all third level positions under each member agency are career positions; 2. That, where appropriate and proper, taking into consideration the organizational set-up of the agency concerned, the overall screening and selection process for these positions shall be a collegial undertaking, provided that the appointment paper shall be signed only by the Head of the member agency; 3. That all career third level positions identified and classified by each of the member agency are not embraced within the Career Executive Service (CES) and as such shall not require Career Service Executive Eligibility (CSEE) or Career Executive Service (CES) Eligibility for purposes of permanent appointment; 4. That should CFAG member agencies develop their respective eligibility requirements for the third level positions, the test of fitness shall be jointly undertaken by the CFAG member agencies in coordination with the CSC; 5. That in case the test of fitness shall be in written form, the CSC shall prepare the questionnaires and conduct the examinations designed to ascertain the general aptitude of the examinees while the member agency shall likewise prepare the questionnaires and conduct in conjunction with the CSC, the examinations to determine the technical capabilities and expertise of the examinees suited to its functions; 6. That the resulting eligibility acquired after passing the aforementioned examination shall appropriate for permanent appointment only to third level positions in the CFAG member agencies; 7. That the member agencies shall regularly coordinate with the CSC for the conferment of the desired eligibility in accordance with this Resolution; However this is without prejudice to those incumbents who wish to take the Career Service Executive Examination given by the Civil Service Commission or the Management Aptitude Test Battery given by the Career Executive Service Board. (Underscoring in the original omitted; emphasis, italics and underscoring supplied)1awphi1.nt On July 31, 2002, Melchor Arthur H. Carandang, Paul Elmer M. Clemente and Jose Tereso U. de Jesus, Jr. were appointed Graft Investigation Officers III of petitioner by the Ombudsman. The CSC approved the appointments on the condition that for the appointees to acquire security of tenure, they must obtain CES or Civil Service Executive (CSE) eligibility which is governed by the CESB. By January 2, 2003 letter to the CSC, the Ombudsman requested for the change of status, from temporary to permanent, of the appointments of Carandang, Clemente and De Jesus effective December 18, 2002. Invoking the Court of Appeals ruling in Khem N. Inok v. Hon. Corazon Alma de Leon, et al. (CA-G.R. SP No. 49699), "as affirmed by the Supreme Court," the Ombudsman wrote: xxx In the Decision of the Court of Appeals dated January 28, 2001 on CA G.R. SP No. 49699 as affirmed by the Supreme Court with finality on July 2, 2002 in G.R. No. 148782 entitled Khem N. Inok vs. Civil Service Commission, it stated in said Decision that the letter and intent of the law is to circumscribe the Career Executive Service (CES) to CES positions in the Executive Branch of Government, and that the Judiciary, the Constitutional Commissions, the Office of the Ombudsman and the Commission on Human Rights are not covered by the CES governed by the Career Executive Service Board. Said Decision thereby effectively granted the petition of Mr. Inok for security of tenure as Director II of the Commission on Audit despite the absence of a CES eligibility.4 (Emphasis and italics supplied) The relevant portions of the cited CA decision read: Presidential Decree No. 807, otherwise known as the Civil Service Decree of the Philippines, provides the following levels of position in the career service, viz: SEC. 7. Classes of Positions in the Career Service. (a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows: (1) The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; (2) The second level shall include professional, technical, and scientific positions which involve professional; technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and (3) The third level shall cover positions in the Career Executive Service. (b) Except as herein otherwise provided, entrance to the first two levels shall be through competitive examinations, which shall be open to those inside and outside the service who meet the minimum qualification requirements. Entrance to a higher level does not require previous qualification in a lower level. Entrance to the third level shall be prescribed by the Career Executive Service Board.

(c) Within the same level, no civil service examination shall be required for promotion to a higher position in one or more related occupational groups. A candidate for promotion should however, have previously passed the examination for that level. The last sentence of Section 7(b) of P.D. No. 807 is similar to the provision of P.D. No. 1, Article IV, par. IV, par. 5(a), to wit: (a) Membership. A person who meets such managerial experience and other requirements and passes such examinations as may be prescribed by the Board shall be included in the register of career service eligibles and, upon appointment to an appropriate class in the Career Executive Service, become an active member in the Service. In exceptional cases, the Board may give unassembled examinations for eligibility. The area of recruitment shall be government-wide, with provisions to allow qualified or outstanding men from outside the government to enter the service. Thus, it could be gleaned from P.D. No. 1 of the Career Executive Service (CES), which has been [d]rafted into Executive Order No. 292, that the letter and intent of the law is to circumscribe the Career Executive Service to CES positions in the Executive Branch of government. Verily, consistent with the principle of the ejusdem generis in legal hermeneutics, the phrase "other officers of equivalent rank" could encompass only such persons occupying positions in the Executive Department. In the contemporaneous case of the The Secretary of Justice Serafin R. Cuevas, et. al. vs. Atty. Josefina G. Bacal, the Supreme Court lent credence to this postulate, viz: Security of tenure in the career executive service is acquired with respect to rank and not to position. The guarantee of security of tenure to members of the CES does not extend to the particular positions to which they may be appointed a concept which is applicable only to frst and second level employees in the civil service but to the rank to which they are appointed by the President. x x x Prescinding from the foregoing disquisition, We are loathe to stamp our imprimatur to the Commissions stance that the "positions of Director III, including that of the COA, belong to the third level. Hence, appointees thereto should possess the x x x Career Executive Service (CES) Eligibility in accordance with the Qualification Standard of the said position." Ineluctably, the judiciary, the Constitutional Commissions, the Office of the Ombudsman, and the Commission on Human Rights are not covered by the CES governed by the CESB. The power of these constitutional offices to appoint their own officers and employees is mainly intended to safeguard their independence, which is the same power of appointment of all officials and employees of the judiciary granted to the Supreme Court. l^vvphi1.net As commented by a noted constitutionalist: The authority of the Supreme Court to appoint its own officials and employees is another measure intended to safeguard the independence of the judiciary. However, the Courts appointing authority must be exercised in accordance with the Civil Service Law. Irrefragrably, inherent in the power to appoint is the power to administratively supervise the officials and employees in the constitutional offices in the same manner that the express power to appoint carries with it the implied power to remove the personnel appointed in said offices. x x x xxx Parenthetically, the power to administratively supervise is designed to strengthen the independence of the constitutional offices. A respected authority on political law underscored the multifarious factors that are integral to the independence of the constitutional offices, scilicet: There are several factors that preserve the independence of the three Commissions: xxx (3) Their appointment must be in a permanent capacity. (4) The Commissions enjoy their own fiscal autonomy. The independence of these constitutional offices serves to exempt their respective officials and employees from the coverage of the CES under the administrative authority of the CESB. to be sure, they are embraced by the civil service system. However, the administrative functions belong to the constitutional offices, instead of the CESB in the same manner that the Supreme Court administers the judiciarys civil service. x x x5 (Italics and emphasis in the original; underscoring partly in the original and partly supplied; citations omitted) It appears that Carandang and Clemente were in the meantime conferred with CSE Eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003.6 Petitioner subsequently reclassified several positions by Resolution No. 02-03 dated August 18, 2003 including Graft Investigation Officer III which was reclassified to Graft Investigation and Prosecution Officer III. The Ombudsman thereupon requested the approval of the proposed Qualification Standards for the reclassified positions. With respect to the reclassified Graft Investigation and Prosecution Officer III position, the Qualification Standards were the same as those for Graft Investigation Officer III. Subsequently, the CSC, by the challenged Resolution of August 28, 2003, changed the status of Carandangs and Clementes appointments to permanent effective June 6, 2003, but not with respect to De Jesus on the ground that he "has not met the eligibility requirements." The pertinent portion of the questioned Resolution reads:

Relevant to the matter are Sections 4 and 6, Rule III and Rule VI, respectively, of the Omnibus Rules on Appointments and Other Personnel Action, which state: SEC. 4. Nature of Appointment. The nature of appointment shall be as follows: xxx i. Change of status: 1. temporary to permanent the appointment issued to a temporary employee when he acquires the appropriate eligibility or becomes fully qualified for the position to which he is appointed. xxx SEC. 6. In cases where the appointee fully qualifies for the position to which he is temporarily appointed, the appointing authority shall no longer issue an appointment for change of status from temporary to permanent. Upon the appointees presentation of the required document/s, such change may be effected as a footnote on the temporary appointment issued, copy furnished the Commission. It is explicitly provided therein that the change of status from temporary to permanent can be effected only once the appointee becomes fully qualified to the position to which he is appointed. xxx The pronouncement of the Court of Appeals in the Inok case cannot be made the basis for changing the employment status of De Jesus. Let it be stressed that nowhere in the aforesaid decision states that the Office of the Ombudsman or the other constitutional agencies mentioned therein are exempt or are not covered by the Civil Service Law and Rules. On the contrary, the same decision declares that these bodies are covered by the civil service system. Basic is the rule that all appointments in the government service, particularly the career service, must be in accordance with the qualification requirements as laid down under existing civil service rules and regulations. Such policy is in line with the Commissions mandate to professionalize the civil service. The requirements spelled out in the Qualification Standards (QS) Manual are designed to determine the fitness of the appointee in a certain position. These requirements are indispensable in order to satisfy the Constitutional mandate that appointment in the civil service shall be made according to merit and fitness. While it is true that constitutional agencies such as the Office of the Ombudsman has the authority to appoint its officials in accordance with law, such law does not necessarily imply that their appointment will not be subject to Civil Service Law and Rules; otherwise, these independent bodies will arrogate upon themselves a power that properly belongs to the Civil Service Commission. Had the intention of the framers of the Constitution been to isolate and grant full independence to Constitutional Commissions in the matter of appointments, it would have been so provided. But that is not the case. the Philippine Constitution provides: "The Constitutional Commissions shall appoint their officials and employees in accordance with law" (Article IX-A, Section 4). Specifically, Section 6, Article XI of the Constitution states that "The officials, shall be appointed by the Ombudsman according to the Civil Service Law." And since all matters pertaining to appointments are within the realm of expertise to the CSC, all laws, rules and regulations it issues on appointments must be complied with. The Constitution speaks of only one civil service, to encompass the first, second, and third levels. It is subject to the same set of laws, rules and regul ations in the manner of observing and ensuring that the merit and fitness principle, unless otherwise exempted therefrom by the Constitution or law, is the guiding factor in issuing appointments. Hence, until and unless there is a law or rule exempting one category of public officials from the test in determining merit and fitness, all levels in the government are deemed subject to it. Simply put, the third level eligibility requirement for third level officials in all agencies is mandatory. Further, let it be clarified that the ruling enunciated in Inok case was with regard to the authority of the Career Executive Service Board to prescribe and to administer the Career Executive Service Eligibility and it did not specifically nor particularly take away the functions of the Civil Service Commission. This is evident from the aforequoted decision in the Inok case, to wit: The independence of these constitutional offices serves to exempt their respective officials and employees from the coverage of the CES under the administrative authority of the CESB. To be sure, they are embraced by the civil service system. However, the administrative functions belong to the constitutional offices, instead of the CESB in the manner that the Supreme Court administers the judiciarys civil service. Pursuant to the QS Manual, a Graft Investigation Officer III position is a career service position requiring a Career Service Eligibility or Career Service Executive Eligibility. Considering that De Jesus has not met the eligibility requirement, the change of status of his appointment from temporary to permanent cannot be effected. As held in Achacoso vs. Macaraig, 195 SCRA 235: It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. x x x (Underscoring partly in the original and partly supplied; emphasis supplied) Hence, the present petition anchored on the following ground: THE GENERAL POWER OF RESPONDENT CIVIL SERVICE COMMISSION (CSC) TO ADMINISTER THE CIVIL SERVICE CANNOT CONSTITUTIONALLY AND VALIDLY CURTAIL THE SPECIFIC DISCRETIONARY POWER OF APPOINTMENT, INCLUDING THE GRANT OF SECURITY OF TENURE, BY THE OMBUDSMAN AS AN INDEPENDENT CONSTITUTIONAL BODY IN FAVOR OF THE LATTERS OW N OFFICIALS, AND ANY SUCH CURTAILMENT BY THE RESPONDENT CSC, AS IN ITS IMPUGNED RESOLUTION NO. 030919 DATED 26 AUGUST 2003, IS CONSTITUTIONALLY AND LEGALLY INFIRM.

Petitioner contends that the CSC misreads the ratio of the appellate court decision in Inok. It contends that the Ombudsman, as an appointing authority, "is specifically tasked by the Constitution to choose his own qualified personnel, which includes the lesser power of granting security of tenure to his appointees once the basic qualification requirements are satisfied."7 Petitioner likewise contends that its constitutional discretion as an independent appointing authority cannot be curtailed by the CSC which "has no authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications." 8 Petitioner further contends that the CES Eligibility, as administered by the respondent CESB, cannot be validly made a requisite for the attainment of security of tenure on qualified career officials of petitioner who are not legally part of the CES. Finally, petitioner argues that its officials which are appointed by the Ombudsman are technically classified as belonging to the Closed Career Service, the positions being unique and highly technical as they involve investigatorial, quasi-judicial and prosecutorial functions, in much the same way as judges are involved in judicial functions. Hence, petitioner concludes, appointment to such positions is likewise characterized by security of tenure. During the pendency of the case before this Court, the CSC, by Resolution9 No. 040738 dated July 6, 2004, approved the proposed Qualification Standards for Graft Investigation and Prosecution Officer I, II and III. As proposed, the following Qualification Standards for Graft Investigation and Prosecution Officer III were approved: Education : Bachelor of Laws Experience : Five (5) years of experience in the practice of law, counseling, investigation/ prosecution of cases, hearings of administrative/criminal cases, legal research or other related works Training : 24 hours of relevant training Eligibility : RA 1080 (BAR) The petition is impressed with merit. That the positions subject of the present case are unique and highly technical in nature, as are those of the Judiciary, is recognized by the constitutional offices under the earlier quoted Joint Resolution No. 62 of the CFAG of which CSC is a member. 10 Inok cannot be invoked as precedent in arriving at the question raised in this petition.l^vvphi1.net This Court dismissed the petition of the CSC in the Inok case on a technicality therein petitioner CSCs failure to file a reply within the required period and not on the merits. Book V, Title I, Subtitle A of the Administrative Code of 1987 provides: SECTION 7. Career Service. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include: (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; x x x (Emphasis and underscoring supplied) From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are presidential appointees. A person occupying the position of Graft Investigation Officer III is not, however, appointed by the President but by the Ombudsman as provided in Article IX of the Constitution, to wit: SECTION 6. THE OFFICIALS AND EMPLOYEES OF THE OMBUDSMAN, OTHER THAN THE DEPUTIES, SHALL BE APPOINTED BY THE OMBUDSMAN ACCORDING TO THE CIVIL SERVICE LAW. To classify the position of Graft Investigation Officer III as belonging to the CES and require an appointee thereto to acquire CES or CSE eligibility before acquiring security of tenure would be absurd as it would result either in 1) vesting the appointing power for said position in the President, in violation of the Constitution; or 2) including in the CES a position not occupied by a presidential appointee, contrary to the Administrative Code. It bears emphasis that that under P.D. No 807, Sec. 9(h) which authorizes the CSC to approve appointments to positions in the civil service, except those specified therein, its authority is limited "only to [determine] whether or not the appointees possess the legal qualifications and the appropriate eligibility, nothing else."11

It is not disputed that, except for his lack of CES or CSE eligibility, De Jesus possesses the basic qualifications of a Graft Investigation Officer III, as provided in the earlier quoted Qualification Standards. Such being the case, the CSC has the ministerial duty to grant the request of the Ombudsman that appointment be made permanent effective December 18, 2002. To refuse to heed the request is a clear encroachment on the discretion vested solely on the Ombudsman as appointing authority.12 It goes without saying that the status of the appointments of Carandang and Clemente, who were conferred CSE eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003, should be changed to permanent effective December 18, 2002 too. In a Supplemental Memorandum13 received by this Court on January 5, 2005, the CSC alleged that, inter alia: . . . the reclassified G[raft] I[nvestigation and] P[rosecution] O[fficer] III position is the same position which is the subject of the herein case. Suffice it to state that the eligibility requirement under the new QS is no longer third level eligibility but RA 1080 (BAR) instead. However, notwithstanding the said approval of the new QS for GIPO III, CSC prays that the issues raised by the Office of Ombudsman relative to the authority of the CSC to administer the Civil Service Executive Examination for third level positions and to prescribe third level eligibility to third level positions in the Office of the Ombudsman be resolved. As the Court takes note of the information of the CSC in its Supplemental Memorandum, it holds that third level eligibility is not required for third level officials of petitioner appointed by the Ombudsman in light of the provisions of the Constitution vis a vis the Administrative Code of 1987 as discussed above. WHEREFORE, the petition is hereby GRANTED. Resolution No. 030919 of the Civil Service Commission dated August 28, 2003 is hereby SET ASIDE. The appointment of Jose Tereso U. de Jesus, Jr., as well as those of Melchor Arthur H. Carandang, Paul Elmer M. Clemente, is hereby ordered made permanent effective December 18, 2002. SO ORDERED.

Republic of the Philippines SUPREME COURT EN BANC G.R. No. 158791 July 22, 2005 CIVIL SERVICE COMMISSION, Petitioner, vs. DEPARTMENT OF BUDGET AND MANAGEMENT, Respondent. DECISION CARPIO MORALES, J.: The Civil Service Commission (petitioner) via the present petition for mandamus seeks to compel the Department of Budget and Management (respondent) to release the balance of its budget for fiscal year 2002. At the same time, it seeks a determination by this Court of the extent of the constitutional concept of fiscal autonomy. By petitioners claim, the amount of P215,270,000.00 was appropriated for its Central Office by the General Appropriations Act (GAA) of 2002, while the total allocations for the same Office, if all sources of funds are considered, amount to P285,660,790.44.1 It complains, however, that the total fund releases by respondent to its Central Office during the fiscal year 2002 was only P279,853,398.14, thereby leaving an unreleased balance of P5,807,392.30. To petitioner, this balance was intentionally withheld by respondent on the basis of its "no report, no release" policy whereby allocations for agencies are withheld pending their submission of the documents mentioned in Sections 3.8 to 3.10 and Section 7.0 of National Budget Circular No. 478 on Guidelines on the Release of the FY 2002 Funds,2 which documents are: 1. Annual Cash Program (ACP) 2. Requests for the Release of Special Allotment Release Order (SARO) and Notice of Cash Allocation (NCA) 3. Summary List of Checks Issued and Cancelled 4. Statement of Allotment, Obligations and Balances 5. Monthly Statement of Charges to Accounts Payable 6. Quarterly Report of Actual Income 7. Quarterly Financial Report of Operations 8. Quarterly Physical Report of Operations 9. FY 2001 Preliminary and Final Trial Balance 10. Statement of Accounts Payable Petitioner contends that the application of the "no report, no release" policy upon independent constitutional bodies of which it is one is a violation of the principle of fiscal autonomy and, therefore, unconstitutional. Respondent, at the outset, opposes the petition on procedural grounds. It contends that first, petitioner did not exhaust administrative remedies as it could have sought clarification from respondents Secretary regarding the extent of fiscal autonomy before r esorting to this Court. Second, even assuming that administrative remedies were exhausted, there are no exceptional and compelling reasons to justify the direct filing of the petition with this Court instead of the trial court, thus violating the hierarchy of courts. On the merits, respondent, glossing over the issue raised by petitioner on the constitutionality of enforcing the "no report, no release" policy, denies having strictly enforced the policy upon offices vested with fiscal autonomy, it claiming that it has applied by extension to these offices the Resolution of this Court in A.M. No. 929-029-SC (Constitutional Mandate on the Judiciarys Fiscal Autonomy) issued on June 3, 1993, 3 particularly one of the guiding principles established therein governing the budget of the Judiciary, to wit: 5. The Supreme Court may submit to the Department of Budget and Management reports of operation and income, current plantilla of personnel, work and financial plans and similar reports only for recording purposes. The submission thereof concerning funds previously released shall not be a condition precedent for subsequent fund releases. (Emphasis and underscoring supplied) Respondent proffers at any rate that the delay in releasing the balance of petitioners budget was not on account of any failure on petitioners part to submit the required reports; rather, it was due to a shortfall in revenues. 4

The rule on exhaustion of administrative remedies invoked by respondent applies only where there is an express legal provision requiring such administrative step as a condition precedent to taking action in court.5 As petitioner is not mandated by any law to seek clarification from the Secretary of Budget and Management prior to filing the present action, its failure to do so does not call for the application of the rule. As for the rule on hierarchy of courts, it is not absolute. A direct invocation of this Court's original jurisdiction may be allowed where there are special and important reasons therefor, clearly and specifically set out in the petition.6 Petitioner justifies its direct filing of the petition with this Court "as the matter involves the concept of fiscal autonomy granted to [it] as well as other constitutional bodies, a legal question not heretofore determined and which only the Honorable Supreme Court can decide with authority and finality".7 To this Court, such justification suffices for allowing the petition. Now on the substantive issues. That the "no report, no release" policy may not be validly enforced against offices vested with fiscal autonomy is not disputed. Indeed, such policy cannot be enforced against offices possessing fiscal autonomy without violating Article IX (A), Section 5 of the Constitution which provides: Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved appropriations shall be automatically and regularly released. In Province of Batangas v. Romulo,8 this Court, in construing the phrase "automatic release" in Section 6, Article X of the Constitution reading: Section 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them, held: Websters Third New International Dictionary defines "automatic" as "involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton." Further, the word "automatically" is defined as "in an automatic manner: without thought or conscious intention." Being "automatic," thus, connotes something mechanical, spontaneous and perfunctory. As such the LGUs are not required to perform any act to receive the "just share" accruing to them from the national coffers. x x x" (Emphasis and underscoring supplied)9 By parity of construction, "automatic release" of approved annual appropriations to petitioner, a constitutional commission which is vested with fiscal autonomy, should thus be construed to mean that no condition to fund releases to it may be imposed. This conclusion is consistent with the above-cited June 3, 1993 Resolution of this Court which effectively prohibited the enforcement of a "no report, no release" policy against the Judiciary which has also been granted fiscal autonomy by the Constitution.10 Respecting respondents justification for the withholding of funds from petitioner as due to a shortfall in revenues, the same does not lie. In the first place, the alleged shortfall is totally unsubstantiated. In the second place, even assuming that there was indeed such a shortfall, that does not justify non-compliance with the mandate of above-quoted Article IX (A), Section 5 of the Constitution. Asturias Sugar Central, Inc. v. Commissioner of Customs teaches that "[a]n interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or nugatory."11 If respondents theory were adopted, then the constitutional mandate to automatically and regularly release approved appropri ations would be suspended every year, or even every month12 that there is a shortfall in revenues, thereby emasculating to a significant degree, if not rendering insignificant altogether, such mandate. Furthermore, the Constitution grants the enjoyment of fiscal autonomy only to the Judiciary, the Constitutional Commissions of which petitioner is one, and the Ombudsman. To hold that petitioner may be subjected to withholding or reduction of funds in the event of a revenue shortfall would, to that extent, place petitioner and the other entities vested with fiscal autonomy on equal footing with all others which are not granted the same autonomy, thereby reducing to naught the distinction established by the Constitution. The agencies which the Constitution has vested with fiscal autonomy should thus be given priority in the release of their approved appropriations over all other agencies not similarly vested when there is a revenue shortfall. Significantly, the Year 2002 GAA itself distinguished between two types of public institutions in the matter of fund releases. With respect to government agencies in general, the pertinent General Provisions of the GAA read as follows: Sec. 62. Prohibition Against Impoundment of Appropriations. No appropriations authorized in this Act shall be impounded through deduction or retention, unless in accordance with the guidelines for the imposition and release of reserves and the rules and regulations for deduction, retention or deferral of releases shall have been issued by the DBM in coordination with the House Committee on Appropriations and the Senate Committee on Finance. Accordingly, all the funds appropriated for the purposes, programs, projects and activities authorized in this Act, except those covered by Special Provision No. 1 of the Unprogrammed Fund shall be regularly and automatically released in accordance with the established allotment period and system by the DBM without any deduction, retention or imposition of reserves. (Emphasis and underscoring supplied) Sec. 63. Unmanageable National Government Budget Deficit. Retention or reduction of appropriations authorized in this Act shall be effected only in cases where there is unmanageable national government budget deficit. Unmanageable national government budget deficit as used in this Section shall be construed to mean that the actual national government budget deficit has exceeded the quarterly budget deficit targets consistent with the full-year target deficit of P130.0 billion as indicated in the FY 2002 Budget of Expenditures and Sources of Financing submitted by the President to Congress pursuant to Section 22, Article VII of the Constitution or there are clear economic indications of an impending

occurrence of such condition, as determined by the Development Budget Coordinating Committee and approved by the President. (Emphasis and underscoring supplied) In contrast, the immediately succeeding provision of the Year 2002 GAA, which specifically applied to offices vested with fiscal autonomy, stated: Sec. 64. Appropriations of Agencies Vested with Fiscal Autonomy. Any provision of law to the contrary notwithstanding, the appropriations authorized in this Act for the Judiciary, Congress of the Philippines, the Commission on Human Rights, the Office of the Ombudsman, the Civil Service Commission, the Commission on Audit and the Commission on Elections shall be automatically and regularly released. (Emphasis and underscoring supplied) Clearly, while the retention or reduction of appropriations for an office is generally allowed when there is an unmanageable budget deficit, the Year 2002 GAA, in conformity with the Constitution, excepted from such rule the appropriations for entities vested with fiscal autonomy. Thus, even assuming that there was a revenue shortfall as respondent claimed, it could not withhold full release of petitioners funds without violating not only t he Constitution but also Section 64 of the General Provisions of the Year 2002 GAA. This Court is not unaware that its above-cited June 3, 1993 Resolution also states as a guiding principle on the Constitutional Mandate on the Judiciarys Fiscal Autonomy that: 4. After approval by Congress, the appropriations for the Judiciary shall be automatically and regularly released subject to availability of funds. (Underscoring supplied) This phrase "subject to availability of funds" does not, however, contradict the present ruling that the funds of entities vested with fiscal autonomy should be automatically and regularly released, a shortfall in revenues notwithstanding. What is contemplated in the said quoted phrase is a situation where total revenue collections are so low that they are not sufficient to cover the total appropriations for all entities vested with fiscal autonomy. In such event, it would be practically impossible to fully release the Judiciarys appropriations or any of the entities also vested wit h fiscal autonomy for that matter, without violating the right of such other entities to an automatic release of their own appropriations. It is under that situation that a relaxation of the constitutional mandate to automatically and regularly release appropriations is allowed. Considering that the budget for agencies enjoying fiscal autonomy is only a small portion of the total national budget, only in the most extreme circumstances will the total revenue collections fall short of the requirements of such agencies. To illustrate, in the Year 2002 GAA the budget for agencies vested with fiscal autonomy amounted only to P14,548,620,000.00, which is 2.53% of the total appropriations in the amount of P575,123,728,000.00.13 In Year 2003 GAA, which was re-enacted in 2004, the budget for the same agencies was P13,807,932,000.00, which is 2.27% of the total appropriations amounting to P609,614,730,000.00.14 And in the Year 2005, the budget for the same agencies was only P13,601,124,000.00, which is 2.28% of the total appropriations amounting to P597,663,400,000.00.15 Finally, petitioners claim that its budget may not be reduced by Congress lower than that of the previous fiscal year, as is the case of the Judiciary, must be rejected. For with respect to the Judiciary, Art. VIII, Section 3 of the Constitution explicitly provides: Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.16 (Emphasis and underscoring supplied) On the other hand, in the parallel provision granting fiscal autonomy to Constitutional Commissions, a similar proscription against the reduction of appropriations below the amount for the previous year is clearly absent. Article IX (A), Section 5 merely states: Section 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released. The plain implication of the omission of the provision proscribing such reduction of appropriations below that for the previous year is that Congress is not prohibited from reducing the appropriations of Constitutional Commissions below the amount appropriated for them for the previous year. WHEREFORE, the petition is, in light of all the foregoing discussions, GRANTED. Respondents act of withholding the subject funds from petitioner due to revenue shortfall is hereby declared UNCONSTITUTIONAL. Accordingly, respondent is directed to release to petitioner the amount of Five Million Eight Hundred Seven Thousand, Three hundred Ninety Two Pesos and Thirty Centavos (P5,807,392.30) representing the unreleased balance of petitioners appropriation for its Central Office by the General Appropr iations Act for FY 2002. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 158791 February 10, 2006

CIVIL SERVICE COMMISSION, Petitioner, vs. DEPARTMENT OF BUDGET AND MANAGEMENT, Respondent. RESOLUTION CARPIO MORALES, J.: Before this Court is the Motion for Reconsideration of respondent Department of Budget and Management (DBM) praying that this Court reconsider its Decision dated July 22, 2005 (the Decision) granting the subject petition. The DBM assails this Courts interpretation of Article IX (A) Section 5 of the Constitution, Sections 62, 63, and 64 of the FY 2002 General Appropriations Act (R.A. No. 9162), and the Resolution of this Court in A.M. No. 92-9-029-SC (Constitutional Mandate on the Judiciarys Fiscal Autonomy) dated June 3, 1993. The DBM posits that this Courts ruling that fiscal autonomy means preference in terms of cash allocation is not supported by the deliberations of the 1986 Constitutional Commission, particularly the discussions on the draft article on the Judiciary where the concept of fiscal autonomy was, by its claim, introduced. The DBM cites the comments of then Commissioner Blas Ople expressing concern over "the propensity throughout this Article in its various provisions to accord the Supreme Court, the lower courts and the judicial system as a whole, a whole plethora of privileges and immunities that are denied the rest of the government of the Republic of the Philippines."1 A close reading of Commissioner Oples comments shows, however, that he was not questioning nor seeking to qualify the concep ts of "fiscal autonomy" and "automatic release" as provided for in what is now Article VIII Section 3 of the Constitution.2 What was then under consideration was the original draft article on the Judiciary which, with regard to appropriations, provided as follows: Section 15. An amount equivalent to not less than two percent of the national budget shall be automatically appropriated and regularly released for the judiciary. (Underscoring supplied) What the original draft thus provided for was automatic appropriation, which is not the same as automatic release of appropriations. The power to appropriate belongs to Congress, while the responsibility of releasing appropriations belongs to the DBM. Commissioner Ople objected to automatic appropriation, it bears emphasis, not to automatic release of appropriations. It was Commissioner Christian Monsod who proposed the substitute provision that is now Article VIII Section 3 providing for "fiscal autonomy" and for automatic and regular release of appropriations. In support of its position, the DBM also cites Commissioner Monsods explanation that "[t]he whole purpose of that provision is to pro tect the independence of the judiciary while at the same time not giving the judiciary what we call a position of privilege by an automatic percentage." Again, what Commissioner Monsod objected to was automatic appropriation for the judiciary, not automatic release of appropriations once approved. The following statement of Commissioner Monsod, read in its context, does not in any way support the position taken by the DBM. The Commissioner will recall that when the provision giving fiscal autonomy to the judiciary was presented to the body, we were the ones who denied to it the percentage of the budget because, precisely, we wanted the judiciary to go through the process of budget-making to justify its budget and to go through the legislature for that justification. But we also said that after having gone through this process, it should have fiscal autonomy so that there will be an automatic and regular release of such funds. The whole purpose of that provision is to protect the independence of the judiciary while at the same time not giving the judiciary what we call a position of privilege by an automatic percentage.3 (Emphasis and underscoring supplied) The DBM further claims that the constitutional mandate to automatically and regularly release funds does not preclude the implementation of a cash payment schedule for all agencies, including those belonging to the constitutional fiscal autonomous group (CFAG). It explains the meaning of "cash payment schedule" in the context of the budgetary process, from the enactment of the general appropriations law to the release of appropriations, thus. After the General Appropriations Act (GAA) is signed into law, this Department, in coordination with the agency concerned, prepares the financial plan for the year in accordance with its appropriations under the GAA. The result of this exercise is embodied in the Agency Budget Matrix or ABM which reflects the individual obligation authority ceilings of the agency, called the allotment. An allotment allows the agency to enter into a contract or otherwise obligate funds although cash has not yet been received by said agency. Simply put, allotments serve as a guarantee that the national government will look for cash to support the agencys obligations. Therefore, the closer the allotment is to the amount of its appropriation, the better. The approved allotment of an ordinary agency does not cover its full appropriations, while those for entities vested with fiscal autonomy always cover the full amount of its appropriations. For instance, allotments for Personal Service of an ordinary agency only cover those for filled positions. In contrast, the Personal Service allotments of agencies enjoying fiscal autonomy are comprehensively released, including those for positions that are admittedly vacant. At the end of the year, whatever is unspent for Personal Services, particularly for unfilled positions, translates to savings, which may be used to augment other items of appropriations.

As emphasized, the ABM of an ordinary agency is disaggregated into those Needing Clearance and Not Needing Clearance. Pursuant to Budget Execution Guidelines no. 2000-12 dated August 29, 2000 x x x, the full allotment of entities belonging to the CFAG is placed under the Not Needing Clearance column. Finally, items under the Not Needing Column of an ordinary agency is further disaggregated to "this release" which represents the initial allotment authorized under the ABM, and "for later release" which represents the amount to be released after the conduct of the agency performance review. In contrast, the total appropriation and allotment of entities belonging to the CFAG are all placed under "this release" since no agency performance review is conducted by the DBM on these entities. xxxx Thus, in order to ensure that the budgets of agencies vested with fiscal autonomy are released in full, the DBM in a ministerial capacity, ensures that the allotments of agencies belonging to the CFAG (i) cover the full amount of their annual appropriations, and (ii) are not subject to any condition. In other words, budgets of fiscal autonomous agencies occupy the highest category in terms of allotment. xxxx After the ABMs are issued, the Notices of Cash Allocations (NCAs) are issued every month to support approved allotments with cash. Ideally, the NCA should cover in full the monthly allotment of the agency. The reality, however, is that every national budget is based on revenue projections, and that there is an ever present risk that these revenue targets are not met in full during the course of the budget year. Last FYs 2001 and 2002, for instance, revenue shortfall was at 7.16% and 9.16%, respectively, as shown below under Table 2. xxxx Further, not all revenue collections are received at the start of the budget year. The cash flow of the national government, like most other public institutions, has its highs and lows depending on the tax calendar. Thus, not all of the projected revenues are available for spending at the start of the budget year. It thus becomes imperative for the Executive Department, through the DBM, to manage the release of funds through implementation of cash payment schedules. For instance, if collections for a given month meet the monthly revenue target, then the NCA for that month shall cover 100% of the allotment. If, however, collections do not meet the monthly revenue target, then the NCA to be released may not cover 100% of the allotment. Add a few more variables, such as amount of deficit and total disbursement of agencies, then one gets a cash payment schedule that varies on a monthly basis.4 (Emphasis and underscoring supplied) The DBM goes on to emphasize that it has no discretion on how much cash enters petitioners coff ers, as cash payment schedules are "dictated by the amount of revenue collection, borrowings, deficit ceilings and total disbursement program of the national government" 5; and if the cash payment schedule prescribes that the total cash to be released for a given month is 85% of allotment, then a Notice of Cash Allocation amounting to 85% of each agencys allotment is released for all agencies. It thus contends that this equality in treatment does not violate the fiscal autonomy of the agencies belonging to the CFAG, for "since approved allotments of agencies belonging to the CFAG are higher than ordinary agencies, they automatically get higher cash allocations."6 The DBMs protestation that it has no discretion on the amount of funds released to agencies with fiscal autonomy fails. The Court finds that the DBM, in fact, exercised discretion denied it by the constitutional mandate to automatically release such funds. Understandably, a shortfall in revenue in a given year would constrain the DBM not to release the total amount appropriated by the GAA for the government as a whole during that year. However, the DBM is certainly not compelled by such circumstance to proportionately reduce the funds appropriated for each and every agency. Given a revenue shortfall, it is still very possible for the DBM to release the full amount appropriated for the agencies with fiscal autonomy, especially since, as noted in the Decision, the total appropriation for such agencies in recent years does not even reach 3% of the national budget.7 That the full amount is, in fact, not fully released during a given fiscal year is plainly due to a policy decision of the DBM. Such a decision, whether it goes by the label of "cash payment schedule" or any other term, cannot be reconciled with the constitutional mandate that the release to these agencies should be automatic. Respecting this Courts observation that Sections 62, 63 and 64 of the General Provisions of the FY2002 GAA reflect the legis lative intent to except entities with fiscal autonomy from the possibility of retention or reduction of funds in the event of an unmanageable budget deficit, the DBM comments as follows: Unfortunately, the sponsorship speech of Cong. Rolando G. Andaya, Jr. Chairman of the House Committee on Appropriations in justifying the introduction of Sections 63 and 64 (sic) in the FY 2002 GAA, belies such contention. x x x In his speech, he states that the incorporation of Section 62 is due to concerns raised by Congressmen on the general impoundment powers of the President, without distinguishing as to the two types of public institutions. More revealing is his explanation in introducing Section 63, which defines unmanageable national government deficit. He states that in order to discourage the Executive Department from reducing the Internal Revenue Allotment of local government units, there is need to define the legal parameters of "unmanageable deficit". Reference to local government units, which likewise enjoy fiscal autonomy according to the pronouncements of this Honorable Court [Pimentel, Jr. v. Aguirre, 336 SCRA 201 at 218 (2000)], reveal the true intent of Congress to cover both agencies vested with fiscal autonomy and those without. x x x"8 (Underscoring supplied) The Court, however, has examined the speech of Congressman Andaya and finds nothing therein that detracts from its ruling. It bears emphasis that this Court explicitly observed that Sections 62 and 63 refer to government agencies in general, while Section 64 applies specifically to agencies with fiscal autonomy. It is in these three provisions read together, and not in reading each one in isolation, that the distinction intended by the legislature becomes evident. When Congressman Andaya introduced Sections 62 and 63, he was thus speaking of government agencies in general. If he did not then expressly distinguish between agencies with fiscal autonomy and those without, it was because there was no pressing need for him to do so. Particularly with regard to Section 62, his speech would reveal that his attention was on a matter that did not call for such distinction, namely, the "deep concern, frustration and despair" expressed by numerous members of Congress "over the impoundment of appropriations by the Department of Budget and Management and the Office of the President" which, he explained, provided the reason behind Section 62 of the GAA.

As for the mention of local governments in Congressman Andayas introduction of Section 63, the same does not imply that said provision was meant to include the agencies belonging to the CFAG. In fact, his speech even suggests that Section 63, rather than itself being an authorization to the DBM to withhold or reduce appropriations, was merely intended to set a guiding principle for the DBM in those cases where it already has authority to withhold or reduce such appropriations. In the case of LGUs, the Congressman explicitly referred to "the provisions of the Local Government Code, R.A. 7160 which authorizes the reduction of the IRA in the event that there is an unmanageable deficit of the National Government."9 He then stated that Section 63 was prompted by the need to set parameters in determining the existence of an "unmanageable deficit." On the other hand, there is no similar authorization for such reduction in the case of agencies belonging to the CFAG not even during an "unmanageable deficit" either in the Constitution or in statute. Thus, notwithstanding the inclusion of LGUs, there is no basis for supposing that the agencies belonging to the CFAG are also covered by Section 63 of the GAA. The DBM furthermore argues that this Courts Resolution of June 3, 1993 in A.M. No. 92 -9-029-SC10 (the Resolution) reading: After approval by Congress, the appropriations for the Judiciary shall be automatically and regularly released subject to availability of funds. (Underscoring supplied) means that fund releases may still be subject to a cash release program. In support of this argument, the DBM cites a letter dated May 18, 1993 of then Chief Presidential Legal Counsel Antonio T. Carpio (now a member of this Court) to the Secretary of Budget and Management, regarding A.M. No. 92-9-029-SC then pending with this Court. The letter quotes then Chief Justice Narvasas summary of this Courts position on the controversy, which summary states, inter alia: "4) the Court will look to releases by the DBM of funds against the approved budget of the Judiciary, in the full amount sought and promptly upon notice; it is willing to consider and pass upon suggestions by the DBM for scheduling of releases; x x x"(Underscoring supplied) In the same letter, the Chief Presidential Legal Counsel, after considering the Courts position, opin ed that one of the principles by which the constitutional mandate on judicial fiscal autonomy can be achieved is that "[a]fter approval by Congress, the appropriations for the judiciary shall be automatically and regularly released subject to availability of funds" which opinion, the DBM alleges, is the position adopted by this Court. Instead of supporting the DBMs position, however, this letter only shows the consistency of this Court in interpreting "auto matic release" as requiring the full release of appropriations. The Courts willingness to pass upon suggestions for scheduling of releases in no way implies that it was ass enting to an incomplete or delayed release of funds. Rather, it was a recognition by this Court that scheduling of releases, as such, does not violate the Constitution and is, in fact, presupposed in the phrase "automatically and regularly released." The phrase "subject to availability of funds" must thus be understood in harmony with the constitutional mandate to automatically release funds as the same has been consistently interpreted by this Court. It is not an authority for the DBM to implement a policy which, although labeled "cash payment schedule," actually goes beyond mere scheduling of releases and effects a withholding and reduction of the approved appropriations, as it did in the present case against petitioner Civil Service Commission. Finally, while acknowledging the unconstitutionality of imposing a "no report, no release" policy on agencies clothed with fiscal autonomy, the DBM prays for a clarification that such agencies are still responsible for the timely submission to it of financial reports. The Court considers it sufficient to echo the following statements in the Separate Opinion of former Chief Justice Hilario G. Davide, Jr.: This is not to say that agencies vested with fiscal autonomy have no reporting responsibility at all to the DBM. This is precisely the reason why guideline No. 5 under the Resolution of 3 June [1993 states that the Supreme Court, or constitutional commissions clothed with fiscal autonomy for that matter, may submit reports relative to its appropriation "for records purposes only." The word "may" is permissive [ Dizon v. Encarnacion, 119 Phil. 20, 22 (1963)], as it is an auxiliary verb manifesting "opportunity or possibility" and, under ordinary circumstances, "implies the possible existence of something." [ Supangan, Jr. v. Santos, G.R. No. 84663, 24 August 1990 x x x Interdependence will work only if it is undertaken within the parameters of the Constitution." WHEREFORE, the Motion for Reconsideration of respondent Department of Budget and Management is DENIED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G. R. No. 140335 December 13, 2000

THELMA P. GAMINDE, petitioner, vs. COMMISSION ON AUDIT and/or Hon. CELSO D. GANGAN, Hon. RAUL C. FLORES and EMMANUEL M. DALMAN, respondents.

DECISION PARDO, J.: The Case The case is a special civil action of certiorari seeking to annul and set aside two decisions of the Commission on Audit ruling that petitioners term of office as Commissioner, Civil Service Commission, to which she was appointed on June 11, 1993, expired on February 02, 1999, as set forth in her appointment paper. The Facts On June 11, 1993, the President of the Philippines appointed petitioner Thelma P. Gaminde, ad interim, Commissioner, Civil Service Commission. She assumed office on June 22, 1993, after taking an oath of office. On September 07, 1993, the Commission on Appointment, Congress of the Philippines confirmed the appointment. We quote verbatim her appointment paper: 11 June 1993 Madam: Pursuant to the provisions of existing laws, you are hereby appointed, ad interim, COMMISSIONER, CIVIL SERVICE COMMISSION, for a term expiring February 2, 1999. By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office. However, on February 24, 1998, petitioner sought clarification from the Office of the President as to the expiry date of her term of office. In reply to her request, the Chief Presidential Legal Counsel, in a letter dated April 07, 1998 opined that petitioners term of office would expire on February 02, 2000, not on February 02, 1999. Relying on said advisory opinion, petitioner remained in office after February 02, 1999. On February 04, 1999, Chairman Corazon Alma G. de Leon, wrote the Commission on Audit requesting opinion on whether or not Commissioner Thelma P. Gaminde and her co-terminous staff may be paid their salaries notwithstanding the expiration of their appointments on February 02, 1999. On February 18, 1999, the General Counsel, Commission on Audit, issued an opinion that th e term of Commissioner Gaminde has expired on February 02, 1999 as stated in her appointment conformably with the constitutional intent. Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe issued notice of disallowance No. 99-002-101 (99), disallowing in audit the salaries and emoluments pertaining to petitioner and her co-terminous staff, effective February 02, 1999. On April 5, 1999, petitioner appealed the disallowance to the Commission on Audit en banc. On June 15, 1999, the Commission on Audit issued Decision No. 99-090 dismissing petitioners appeal. The Commission on Audit affirmed the propriety of the disallowance, holding that the issue of petitioners term of office may be properly addressed by mere reference to her appointment paper which set the expiration date on February 02, 1999, and that the Commission is bereft of power to recognize an extension of her term, not even with the implied acquiescence of the Office of the President. In time, petitioner moved for reconsideration; however, on August 17, 1999, the Commission on Audit denied the motion in Decision No. 99-129. Hence, this petition. The Issue The basic issue raised is whether the term of office of Atty. Thelma P. Gaminde, as Commissioner, Civil Service Commission, to which she was appointed on June 11, 1993, expired on February 02, 1999, as stated in the appointment paper, or on February 02, 2000, as claimed by her. The Courts Ruling

The term of office of the Chairman and members of the Civil Service Commission is prescribed in the 1987 Constitution, as follows: Section 1 (2). 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 reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. The 1973 Constitution introduced the first system of a regular rotation or cycle in the membership of the Civil Service Commission. The provision on the 1973 Constitution reads: x x x The Chairman and the Commissioners shall be appointed by the Prime Minister for a term of seven years without reappoin tment. Of the Commissioners first appointed, one shall hold office for seven years, another for five years, and the third for three years. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. Actually, this was a copy of the Constitutional prescription in the amended 1935 Constitution of a rotational system for the appointment of the Chairman and members of the Commission on Elections. The Constitutional amendment creating an independent Commission on Elections provides as follows: Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachment in the manner provided in this Constitution." In Republic vs. Imperial, we said that the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that the term s of the first three (3) Commissioners should start on a common date, and, (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term. Consequently, the terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date, irrespective of the variations in the dates of appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. Applying the foregoing conditions to the case at bar, we rule that the appropriate starting point of the terms of office of the first appointees to the Constitutional Commissions under the 1987 Constitution must be on February 02, 1987, the date of the adoption of the 1987 Constitution. In case of a belated appointment or qualification, the interval between the start of the term and the actual qualification of the appointee must be counted against the latter. In the law of public officers, there is a settled distinction between term and tenure. [T]he term of an office must be distinguished from the tenure of the incumbent. The term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. In concluding that February 02, 1987 is the proper starting point of the terms of office of the first appointees to the Constitutional Commissions of a staggered 7-5-3 year terms, we considered the plain language of Article IX (B), Section 1 (2), Article IX (C), Section 1 (2) and Article IX (D), Section 1 (2) of the 1987 Constitution that uniformly prescribed a seven-year term of office for Members of the Constitutional Commissions, without re-appointment, and for the first appointees terms of seven, five and three years, without re-appointment. In no case shall any Member be appointed or designated in a temporary or acting capacity. There is no need to expressly state the beginning of the term of office as this is understood to coincide with the effectivity of the Constitution upon its ratification (on February 02, 1987). On the other hand, Article XVIII, Transitory Provisions, 1987 Constitution provides: SEC. 15. The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than seven years including service before the ratification of this Constitution. What the above quoted Transitory Provisions contemplate is tenure not term of the incu mbent Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, who shall continue in office for one year after the ratification of thi s Constitution, unless they are sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a new term thereunder. The term unless imports an exception to the general rule. Clearly, the transitory provisions mean that the incumbent members of the Constitutional Commissions shall continue in office for one year after the ratification of this Constitution under their existing appointments at the discretion of the appointing power, who may cut short their tenure by: (1) their removal from office for cause; (2) their becoming incapacitated to discharge the duties of their office, or (3) their appointment to a new term thereunder, all of which events may occur before the end of the one year period after the effectivity of the Constitution. However, the transitory provisions do not affect the term of office fixed in Article IX, providing for a seven-five-three year rotational interval for the first appointees under this Constitution. At the time of the adoption of the 1987 Constitution, the incumbent Chairman and members of the Civil Service Commission were the following: (1) Chairperson Celerina G. Gotladera. She was initially appointed as OIC Chairman on March 19, 1986, and appointed chairman on December 24, 1986, which she assumed on March 13, 1987. (2) Atty. Cirilo G. Montejo. On June 25, 1986, President Corazon C. Aquino appointed him Commissioner, without any term. He assumed office on July 9, 1986, and served until March 31, 1987, when he filed a certificate of candidacy for the position of Congressman, 2 nd District, Leyte, thereby vacating his position as Commissioner. His tenure was automatically cut-off by the filing of his certificate of candidacy. (3) Atty. Mario D. Yango. On January 22, 1985, President Ferdinand E. Marcos appointed him Commissioner for a term expiring January 25, 1990. He served until February 2, 1988, when his term ended in virtue of the transitory provisions referred to. On May 30, 1988, President Aquino re-appointed him to a new three-year term and served until May 31, 1991, exceeding his lawful term, but not exceeding the maximum of seven years, including service before the ratification of the 1987 Constitution. Under this factual milieu, it was only Commissioner

Yango who was extended a new term under the 1987 Constitution. The period consumed between the start of the term on February 02, 1987, and his actual assumption on May 30, 1988, due to his belated appointment, must be counted against him. Given the foregoing common starting point, we compute the terms of the first appointees and their successors to the Civil Service Commission under the 1987 Constitution by their respective lines, as follows: First line : Chairman seven-year term. February 02, 1987 to February 01, 1994. On January 30, 1988, the President nominated Ms. Patricia A. Sto. Tomas Chairman, Civil Service Commission. On March 02, 1988, the Commission on Appointments confirmed the nomination. She assumed office on March 04, 1988. Her term ended on February 02, 1994. She served as de facto Chairman until March 04, 1995. On March 05, 1995, the President appointed then Social Welfare Secretary Corazon Alma G. de Leon, Chairman, Civil Service Commission, to a regular seven-year term. This term must be deemed to start on February 02, 1994, immediately succeeding her predecessor, whose term started on the common date of the terms of office of the first appointees under the 1987 Constitution. She assumed office on March 22, 1995, for a term expiring February 02, 2001. This is shown in her appointment paper, quoted verbatim as follows: March 5, 1995 Madam: Pursuant to the provisions of Article VII, Section 16, paragraph 2, of the Constitution, you are hereby appointed, ad interim, CHAIRMAN, CIVIL SERVICE COMMISSION, for a term expiring February 2, 2001. By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office. (Sgd.) FIDEL V. RAMOS Second line : Commissioner Five-year term. February 02, 1987 to February 02, 1992. On January 30, 1988, the President nominated Atty. Samilo N. Barlongay Commissioner, Civil Service Commission. On February 17, 1988, the Commission on Appointments, Congress of the Philippines, confirmed the nomination. He assumed office on March 04, 1988. His term ended on February 02, 1992. He served as de facto Commissioner until March 04, 1993. On June 11, 1993, the President appointed Atty. Thelma P. Gaminde Commissioner, Civil Service Commission, for a term expiring February 02, 1999. This terminal date is specified in her appointment paper. On September 07, 1993, the Commission on Appointments confirmed the appointment. She accepted the appointment and assumed office on June 22, 1993. She is bound by the term of the appointment she accepted, expiring February 02, 1999. In this connection, the letter dated April 07, 1998, of Deputy Executive Secretary Renato C. Corona clarifying that her term would expire on February 02, 2000, was in error. What was submitted to the Commission on Appointments was a nomination for a term expiring on February 02, 1999. Thus, the term of her successor must be deemed to start on February 02, 1999, and expire on February 02, 2006. Third line : Commissioner Three-year term. February 02, 1987 to February 02, 1990. Atty. Mario D. Yango was incumbent commissioner at the time of the adoption of the 1987 Constitution. His extended tenure ended on February 02, 1988. In May, 1988, President Corazon C. Aquino appointed him Commissioner, Civil Service Commission to a new three-year term thereunder. He assumed office on May 30, 1988. His term ended on February 02, 1990, but served as de facto Commissioner until May 31, 1991. On November 26, 1991, the President nominated Atty. Ramon P. Ereeta as Commissioner, Civil Service Commission. On December 04, 1991, the Commission on Appointments confirmed the nomination. He assumed office on December 12, 1991, for a term expiring February 02, 1997. Commendably, he voluntarily retired on February 02, 1997. On February 03, 1997, President Fidel V. Ramos appointed Atty. Jose F. Erestain, Jr. Commissioner, Civil Service Commission, for a term expiring February 02, 2004. He assumed office on February 11, 1997. Thus, we see the regular interval of vacancy every two (2) years, namely, February 02, 1994, for the first Chairman, February 02, 1992, for the first five-year term Commissioner, and February 02, 1990, for the first three-year term Commissioner. Their successors must also maintain the two year interval, namely: February 02, 2001, for Chairman; February 02, 1999, for Commissioner Thelma P. Gaminde, and February 02, 1997, for Commissioner Ramon P. Ereeta, Jr. The third batch of appointees would then be having terms of office as follows: First line : Chairman, February 02, 2001 to February 02, 2008; Second line: Commissioner, February 02, 1999 to February 02, 2006; and, Third line: Commissioner, February 02, 1997 to February 02, 2004, thereby consistently maintaining the two-year interval. The line of succession, terms of office and tenure of the Chairman and members of the Civil Service Commission may be outlined as follows: Chairman (7-year original) Sto. Tomas 1st appointee De Leon 2 appointee (incumbent) _______ - 3rd appointee
nd

Term Feb. 02, 1987 to

Tenure

Mar. 04, 1988 to Feb. 02, 1994 March 08, 1995 Feb. 02, 1994 to March 22, 1995 to Feb. 02, 2001 Feb. 02, 2001 Feb. 02, 2001 to Feb. 02, 2008

2nd Member (5-year original) Barlongay 1st appointee Gaminde 2nd appointee Valmores 3rd appointee (incumbent) 3rd Member (3-year original) Yango - 1st appointee Ereeta 2nd appointee Erestain, Jr. 3rd appointee (incumbent)

Term

Tenure

Feb. 02, 1987 to March 04, 1988 to Feb. 02, 1992 March 04, 1993 Feb. 02, 1992 to June 11, 1993 to Feb. 02, 1999 Feb. 02, 2000 Feb. 02, 1999 to Sept. 08, 2000 to Feb. 02, 2006 Feb. 02, 2006 Term Tenure Feb. 02, 1987 to May 30, 1988 to Feb. 02, 1990 May 31, 1991 Feb. 02, 1990 to Dec. 12, 1991 to Feb. 02, 1997 Feb. 02, 1997 Feb. 02, 1997 to Feb. 11, 1997 to Feb. 02, 2004 Feb. 02, 2004 The Fallo

WHEREFORE, we adjudge that the term of office of Ms. Thelma P. Gaminde as Commissioner, Civil Service Commission, under an appointment extended to her by President Fidel V. Ramos on June 11, 1993, expired on February 02, 1999. However, she served as de facto officer in good faith until February 02, 2000, and thus entitled to receive her salary and other emoluments for actual service rendered. Consequently, the Commission on Audit erred in disallowing in audit such salary and other emoluments, including that of her co-terminous staff. ACCORDINGLY, we REVERSE the decisions of the Commission on Audit insofar as they disallow the salaries and emoluments of Commissioner Thelma P. Gaminde and her coterminous staff during her tenure as de facto officer from February 02, 1999, until February 02, 2000. This decision shall be effective immediately. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 93867 December 18, 1990

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. 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 IX-A, 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 wellmeaning. 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. 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.: SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 129133 November 25, 1998 ECONOMIC INTELLIGENCE AND INVESTIGATION BUREAU, petitioner, vs. HON. COURT OF APPEALS and CIVIL SERVICE COMMISSION, respondents.

PURISIMA, J.: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court to review and set aside the 7 November 1996 Decision 1 and 18 March 1997 Resolution 2 of the Court of Appeals 3 in CA- G.R. SP No. 37720. As culled by the Court of Appeals, the antecedent facts that matter are, as follows: In a letter dated October 13, 1988, respondent CSC through Chairman Patricia A. Sto. Tomas required the Secretary of Finance to submit to the CSC all appointments in the Economic Intelligence and Investigation Bureau (EIIB). Instead of complying with the said letter, petitioner Jose T. Almonte, as Commissioner of EIIB, wrote a letter dated March 29, 1989, to respondent CSC, requesting for confirmation of EIIB's exemption from CSC rules and regulations with respect to appointments and other personnel actions invoking as basis for such exemption PD No. 1458 and LOI No. 71. On June 21, 1989, respondent CSC issued the subject Resolution No. 89-400, denying petitioner Almonte's request for exemption of the EIIB from the coverage of the civil service rules and regulations and reiterating its order that petitioner EIIB submit to the CSC all appointments to career or non-career positions in the Bureau. Not having received any compliance from petitioners, respondent CSC, in its Order of December 7, 1990, directed petitioner Jose T. Almonte to immediately implement Resolution No. 89-400, with a warning that any EIIB official who shall fail or refuse to comply with the said order shall be held liable for indirect contempt. On June 4, 1991, respondent CSC issued another order, requiring petitioner Almonte to Show cause why he should not be cited for indirect contempt for his continued refusal to implement or comply with CSC Resolution No. 89-400 and the Order of December 7, 1990. In a letter, dated June 13, 1991, petitioner Almonte explained to the respondent CSC the reasons of the EIIB for its inability to comply with Resolution No. 89-400. He invoked PD No. 1458 and LOI No. 71 exempting the EIIB from the coverage of civil service rules and regulations on appointments and other personnel actions. Petitioner Almonte prayed that Resolution No. 89-400, the Order of June 4, 1991, and the subsequent orders be set aside. On August 22, 1991, respondent CSC issued an order, finding petitioner Almonte guilty of indirect contempt of the Commission, the dispositive portion of which reads as follows: WHEREFORE, foregoing premises considered, the commission hereby resolves to find and adjudge Jose T. Almonte, Commissioner, EIIB, guilty of indirect contempt of the Commission pursuant to Section 12 (11), Book V, Subtitle A of Executive order No. 292 and memorandum Circular No. 42, series of 1990. He is thus meted the penalty of fine P1,000.00 each day from the date of receipt of this Order dated December 7, 1990. Accordingly, the Cashier of the EIIB is hereby directed to deduct from the salary of Commissioner Almonte the amount of P1,000.00 each day of his failure to comply with the above CSC Order. Let copies of this Order be furnished the Resident Auditor of the EIIB as well as the COA, the Secretary of the Department of Finance and the CSFO-DND, for their information and guidance. SO ORDERED. Dissatisfied therewith, petitioner went to the Court of Appeals on a Petition for Certiorari. However, on November 7, 1996, the Court of Appeals dismissed the petition; ratiocinating thus: The 1987 Constitution is so clear and categorical in its mandate that: Art. IX (B), Section 2 (1). The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.

The civil service contemplated in the constitutional provision is very comprehensive in its scope, that it includes every category of officer or employee of the government, its branches, subdivisions and instrumentalities, and even employees of private corporations, if such corporations are controlled or owned by the government with original charters. In the light of his constitutional mandate, petitioner EIIB, being a government agency, is necessarily embraced by the civil service. The fact that positions in the EIIB are primarily confidential did not place it outside the domain of civil servants, since "it is conceded that one holding in the Government a primarily confidential position is in the Civil Service" (Ingles v. Mutuc, 26 SCRA 171). That fact merely exempts confidential positions in the EIIB from the constitutional rule that "appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable . . . by competitive examination [Art. IX (B), Sec. 2 (2) ]". And it is in this sense that the provisions of PD 1458, particularly Section 5 and LOI 71 relied upon by the petitioners should be interpreted. Neither does petitioners' contention that "if EIIB's positions and personnel actions will be opened, one may know its operations, movements, targets, strategies, and tactics and the whole of its being" deserve merit, as the same is pure speculation and conjecture. EIIB officials and personnel remain civil servants and as correctly argued by the Solicitor General, "EIIB officials occupying confidential positions, remain accountable to the people and are subject to the same state policies on morale, efficiency, integrity, responsiveness and courtesy in the civil service". Thus We hold that the personnel in the EEIB are covered by the Civil Service. xxx xxx xxx WHEREFORE, the Court upholds Resolution No. 89-400 but declares CSC Orders of December 7, 1990, June 4, 1991, and of August 22, 1991, as NULL AND VOID, the Civil Service Commission not having jurisdiction to cite and punish Commissioner Jose T. Almonte of the Economic Intelligence and Investigation Bureau for indirect contempt of the Commission. With the denial of its motion for reconsideration by Resolution, dated March 18, 1997, of the Court of Appeals, petitioner found its way to this Court via the present Petition; contending, that: IN HOLDING THAT PETITIONER IS COVERED BY CIVIL SERVICE, RESPONDENT COURT VIOLATED P.D. No. 1458 AND LOI No. 71 WHICH EXPRESSLY EXEMPT IT FROM CIVIL SERVICE COVERAGE. The pivotal issue here is: whether or not the petitioner, Economic Intelligence Investigation Bureau (EIIB), is embraced by the Civil Service. Sec. 2, subparagraph (1), Article IX, paragraph (B) of the 1987 Constitution provides: The civil service embraces all branches, subdivisions, instrumentalities, agencies of the Government, including government-owned or controlled corporations with original charter. Succinct and clear is the provision of the Constitution in point that all government agencies, without exception, are covered by the civil service. Petitioner EIIB is a government agency under the Department of Finance as provided by Section 17, Chapter 4, Title II, Book IV of the 1987 Administrative Code. 4 Therefore, EIIB is within the ambit of the Civil Service Law. The civil service within the contemplation of the aforecited constitutional provision is comprehensive in scope. It embraces all officers and employees of the government, its branches, subdivisions and instrumentalities. Even employees of corporations owned or controlled by the government, with original charters, are covered thereby. Petitioner contends that EIIB is expressly exempted from civil service coverage, under Section 5 of P.D. No. 1458, which provides: Application of WAPCO and Civil Service Rules Personnel of the FDIIB shall be exempted from WAPCO and Civil Service Rules and Regulations relative to appointments and other personnel actions: Provided, That they shall be entitled to the benefits and privileges accorded to government employees . . . On the other hand, LOI No. 71, the Implementing Rules of P.D. No. 1458, reads: 10. It is further directed that personnel of the BII shall be exempt from OCPC and Civil Service Rules and Regulations relative to appointments and other personnel actions; Provided, That they shall be entitled to the benefits accorded to government employees . . . Petitioner's submission is barren of merit. The aforecited provisions of law provide for the exemption of petitioner EIIB only from Civil Service Rules and Regulations relative to appointments and other personnel actions, but not from the Civil Service Law or Civil Service Rules and Regulations relative to any other matter. Neither can we uphold petitioner's reliance on Section 26 of Executive Order No. 127, 5 Petitioner, in gist, asserts exemption from Civil Service coverage since the Bureau forms part of the intelligence community created under the said executive Order. There is merit in the disquisition by the Court of Appeals that membership of petitioner EIIB in the intelligence community is of no moment, insofar as application of the Civil Service Law is concerned. The National Bureau of Investigation (NBI), also a member of the intelligence community which performs functions similar to those of EIIB, e.g., intelligence gathering, investigation, research, etc., submits to the Civil Service Commission the appointments of all NBI personnel, whether

belonging to the career or non-career service. Besides, in Ingles vs. Mutuc, 26 SCRA 171, this Court ruled that " . . . one holding in the Government a primarily confidential position is 'in the Civil Service'." Equally untenable is petitioner's contention that, because the personnel of EIIB are occupying jobs highly confidential in nature, the EIIB should not be required to submit the names of its personnel to the Civil Service Commission. In Almonte vs. Vasquez, 244 SCRA 286 [1995], EIIB was ordered by the Ombudsman to produce documents relating to personnel services and salary vouchers of EIIB employees. The Bureau pleaded that such documents are classified, and knowledge of EIIB's documents relative to its Personnel Services Funds and its plantilla will inevitably lead to knowledge of its operations, movements, targets and strategies, which could destroy the Bureau itself. The Court ruled that the required documents can be examined by the Ombudsman; explaining that: . . . [T]here is no claim that military or diplomatic secrets will be disclosed by the production of records pertaining to the personnel of the EIIB. Indeed, EIIB's function is the gathering and evaluation of intelligence reports and information regarding "illegal activities affecting the national economy, such as, but not limited to, economic sabotage, smuggling, tax evasion, dollar salting." Consequently, while in cases which involve state secrets it may be sufficient to determine from the circumstance of the case that there is reasonable danger that compulsion of the evidence will expose military matters without compelling production, no similar excuse can be made for a privilege resting on other considerations. Nor has our attention been called to any law or regulation which considers records of the EIIB as classified information . . . All things viewed in proper perspective, we are of the opinion, and so hold, that the Court of Appeals erred not in holding that: . . . [R]espondent CSC's act of requiring petitioner EIIB to submit to it all appointments in the Bureau, for appropriate action, is part of its administrative function as the central personnel agency of the government. WHEREFORE, the petition is hereby DENIED; and the Decision of the Court of Appeals in CA-GR SP No. 37720 AFFIRMED, without any pronouncement as to costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-58494 July 5, 1989 PHILIPPINE NATIONAL OIL COMPANY-ENERGY DEVELOPMENT CORPORATION, petitioner, vs. HON. VICENTE T. LEOGARDO, DEPUTY MINISTER OF LABOR AND VICENTE D. ELLELINA, respondents.

MELENCIO-HERRERA, J.: Through this Petition for Certiorari, Philippine National Oil Company-Energy Development Corporation (PNOC-EDC) seeks to declare null and void, for lack of jurisdiction, the Order of public respondent, the Deputy Minister of Labor, sustaining his jurisdiction over the instant controversy. Petitioner PNOC-EDC is a subsidiary of the Philippine National Oil Company (PNOC). On 20 January 1978, it filed with the Ministry of Labor and Employment, Regional Office No. VII, Cebu City (MOLE), a clearance application to dismiss/ terminate the services of private respondent, Vicente D. Ellelina, a contractual employee. The application for clearance was premised on Ellelina's alleged commission of a crime (Alarm or Public Scandal) during a Christmas party on 19 December 1977 at petitioner's camp in Uling, Cebu, when, because of the refusal of the raffle committee to give him the prize corresponding to his lost winning ticket, he tried to grab the armalite rifle of the PC Officer outside the building despite the warning shots fired by the latter. Clearance to dismiss was initially granted by MOLE but was subsequently revoked and petitioner was ordered to reinstate Ellelina to his former position, without loss of seniority rights, and with backwages from I February 1978 up to his actual reinstatement. Petitioner appealed to the Minister of Labor who, acting through public respondent, affirmed, on 14 August 1981, the appealed Order. Hence, this Petition predicated substantially on the following grounds: 1. Under Article 277 of the Labor Code, the Ministry of Labor and Employment has no jurisdiction over petitioner because it is a government-owned or controlled corporation; 2. Ellelina's dismissal is valid and just because it is based upon the commission of a crime. On the other hand, public respondent contends: (a) While the petitioner is a subsidiary of the PNOC, it is still covered by the Labor Code and, therefore, within the jurisdiction of the Ministry of Labor inasmuch as petitioner was organized as a private corporation under the Corporation Law and registered with the Securities and Exchange Commission; (b) Petitioner is estopped from assailing the Labor Department's jurisdiction, having subjected itself to the latter when it filed the application for clearance to terminate Ellelina's services; and (c) Dismissal is too harsh a penalty. The issues that confront us, therefore, are (1) whether or not public respondent committed grave abuse of discretion in holding that petitioner is governed by the Labor Code; and (2) whether or not Ellelina's dismissal was justified. 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. Thus, 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 ... . In turn, the 1973 Constitution provided: The Civil Service embraces every branch, agency, subdivision and instrumentality of the government, including government-owned or controlled corporations. In National Housing Corporation vs. Juco (L-64313, January 17, 1985, 134 SCRA 172), we laid down the doctrine 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. However, the above doctrine has been supplanted by the present Constitution, which provides:

The Civil Service embraces all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned or controlled corporations with original charters. (Article IX-B, Section 2 [1]) Thus, under the present state of the law, the test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the manner of its creation such that government corporations created by special charter are subject to its provisions while those incorporated under the general Corporation Law are not within its coverage. In NASECO vs. NLRC (G.R. No. 69870, November 29,1988), we had occasion to apply the present Constitution in deciding whether or not the employees of NASECO (a subsidiary of the NIDC, which is in turn a subsidiary wholly-owned by the PNB, a government-owned corporation) 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 held that the NLRC has jurisdiction over the employees of NASECO "on the premise that it is the 1987 Constitution that governs because it is the Constitution in place at the time of decision;" and that being a corporation without an original charter, the employees of NASECO are subject to the provisions of the Labor Code. We see no reason to depart from the ruling in the aforesaid case. We hold, therefore, that the PNOC-EDC having been incorporated under the general Corporation Law, is a government-owned or controlled corporation whose employees are subject to the provisions of the Labor Code. This is apparently the intendment in the NASECO case notwithstanding the fact that the NASECO therein was a subsidiary of the PNB, a government-owned corporation. In so far as Ellelina is concerned, we hold that the reinstatement ordered by public respondent, without loss of seniority rights, is proper. However, consistent with the rulings of the Court, backwages should be limited to three years from 1 February 1978. The dismissal ordered by petitioner was a bit too harsh considering the nature of the act which he had committed and that it was his first offense. WHEREFORE, the Petition is DISMISSED, and the judgment of respondent public official is hereby AFFIRMED. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 141707 May 7, 2002

CAYO G. GAMOGAMO, petitioner, vs. PNOC SHIPPING AND TRANSPORT CORP., respondent. DAVIDE, JR., C.J.: The pivotal issue raised in the petition in this case is whether, for the purpose of computing an employees retirement pay, prior service rendered in a government agency can be tacked in and added to the creditable service later acquired in a government-owned and controlled corporation without original charter. On 23 January 1963, Petitioner Cayo F. Gamogamo was first employed with the Department of Health (DOH) as Dental Aide. On 22 February 1967, he was promoted to the position of Dentist 1. He remained employed at the DOH for fourteen years until he resigned on 2 November 1977.1 On 9 November 1977, petitioner was hired as company dentist by Luzon Stevedoring Corporation (LUSTEVECO), a private domestic corporation.2 Subsequently, respondent PNOC Shipping and Transport Corporation (hereafter Respondent) acquired and took over the shipping business of LUSTEVECO, and on 1 August 1979, petitioner was among those who opted to be absorbed by the Respondent. 3 Thus, he continued to work as company dentist. In a letter dated 1 August 1979, Respondent assumed without interruption petitioners service credits with LUSTEVECO, 4 but it did not make reference to nor assumed petitioners service credits with the DOH. On 10 June 1993, then President Fidel V. Ramos issued a memorandum5 approving the privatization of PNOC subsidiaries, including Respondent, pursuant to the provisions of Section III(B) of the Guidelines and Regulations to implement Executive Order No. 37. 6 Accordingly, Respondent implemented a Manpower Reduction Program to govern employees whose respective positions have been classified as redundant as a result of Respondents decrease in operations and the downsizing of the organization due to lay-up and sale of its vessels pursuant to its direction towards privatization.7 Under this program, retrenched employees shall receive a two-month pay for every year of service. Sometime in 1995, petitioner requested to be included in the next retrenchment schedule. However, his request was turned down for the following reasons:8 1. As a company dentist he was holding a permanent position; 2. He was already due for mandatory retirement in April 1995 under his retirement plan (first day of the month following his 60th birthday which was on 7 March 1995). Eventually, petitioner retired after serving the Respondent and LUSTEVECO for 17 years and 4 months upon reaching his 60 th birthday, on 1 April 1995. He received a retirement pay of P512,524.15,9 which is equivalent to one month pay for every year of service and other benefits. On 30 August 1995, Admiral Carlito Y. Cunanan, Repondents president, died of Dengue Fever and was forthwith replaced by Dr. Nemesio E. Pru dente who assumed office in December 1995. The new president implemented significant cost-saving measures. In 1996, after petitioners retirement, the cases of Dr. Rogelio T. Buena (company doctor) and Mrs. Luz C. Reyes (telephone operator), who were holding permanent/non-redundant positions but were willing to be retrenched under the program were brought to the attention of the new president who ordered that a study on the cost-effect of the retrenchment of these employees be conducted. After a thorough study, Respondents Board of Directors recommended the approval of the retrenchment. These two employees were retren ched and paid a 2-month separation pay for every year of service under Respondents Manpower Reduction Program. 10 In view of the action taken by Respondent in the retrenchment of Dr. Buena and Mrs. Reyes, petitioner filed a complaint at the National Labor Relations Commission (NLRC) for the full payment of his retirement benefits. Petitioner argued that his service with the DOH should have been included in the computation of his years of service. Hence, with an accumulated service of 32 years he should have been paid a two-month pay for every year of service per the retirement plan and thus should have received at least P1,833,920.00. The Labor Arbiter dismissed petitioners complaint.11 On appeal, however, the NLRC reversed the decision of the Labor Arbiter. In its decision 12 of 28 November 1997, the NLRC ruled: WHEREFORE, the Decision of the Labor Arbiter dated May 30, 1997 is hereby SET ASIDE and another judgment is hereby rendered to wit: (1) the government service of the complainant with the Department of Health numbering fourteen (14) years is hereby considered creditable service for purposes of computing his retirement benefits; (2) crediting his fourteen (14) years service with the Department of Health, together with his nearly eighteen (18) years of service with the respondent, complainant therefore has almost thirty-two (32) years service upon which his retirement benefits would be computed or based on; (3) complainant is entitled to the full payment of his retirement benefits pursuant to the respondents Retirement Law or the retrenchment program (Manpower Reduction Program). In any case, he is entitled to two (2) months retirement/separation pay for every year of service.

(4) all other claims are DISMISSED. SO ORDERED. Respondent filed a motion for reconsideration but it was denied.13 Unsatisfied with the reversal, Respondent filed with the Court of Appeals a special civil action for certiorari which was docketed as CA-G.R. SP No. 51152. In its decision14 of 8 November 1999, the Court of Appeals set aside the NLRC judgment and decreed: WHEREFORE, the petition is hereby GIVEN DUE COURSE and the writ prayed for GRANTED. Consequently, the Decision and Resolution of the National Labor Relations Commission (Second Division) dated November 28, 1997 and May 15, 1998, respectively, are hereby SET ASIDE AND NULLIFIED, without prejudice to private respondent Cayo F. Gamo-gamos recovery of whatever benefits he may have been entitled to receive by reason of his fourteen (14) years of service with the Department of Health. No pronouncement as to costs. His motion for reconsideration having been denied by the Court of Appeals,15 petitioner filed with us the petition in the case at bar. Petitioner contends that: (1) his years of service with the DOH must be considered as creditable service for the purpose of computing his retirement pay; and (2) he was discriminated against in the application of the Manpower Reduction Program.16 Petitioner maintains that his government service with the DOH should be recognized and tacked in to his length of service with Respondent because LUSTEVECO, which was later bought by Respondent, and Respondent itself, were government-owned and controlled corporations and were, therefore, under the Civil Service Law. Prior to the separation of Respondent from the Civil Service by virtue of the 1987 Constitution, petitioners length of service was considered continuous. The effectivit y of the 1987 Constitution did not interrupt his continuity of service. He claims that he is supported by the opinion of 18 May 1993 of the Civil Service Commission in the case of Petron Corporation, where the Commission allegedly opined: that all government services rendered by employees of the Petron prior to 1987 Constitution are considered creditable servi ces for purposes of computation of retirement benefits. This must necessarily be so considering that in the event that Petron would consider only those services of an employee with Petron when it was excluded from the civil service coverage (that is after the 1987 Constitution), it would render nugatory his government agencies prior to his transfer to Petron. Hence, Petron or any other PNOC subsidiary has to include in its retirement scheme or in its Collective Bargaining Agreement a provision of the inclusion of the other government services of its employees rendered outside Petron, otherwise, it would be prejudicial to the interest of the retireable employee concerned. Petitioner asserts that with the tacking in of his 14 years of service with the DOH to his 17 years and 4 months service with LUSTEVECO and Respondent, he had 31 years and 4 months creditable service as basis for the computation of his retirement benefits. Thus, pursuant to Respondents Manpower Reduction Program, he should have been paid two months pay for every year of his 31 years of service. Petitioner likewise asserts that the principle of tacking is anchored on Republic Act No. 7699. 17 Petitioner concludes that there was discrimination when his application for coverage under the Manpower Reduction Program was disapproved. His application was denied because he was holding a permanent position and that he was due for retirement. However, Respondent granted the application of Dr. Rogelio Buena, who was likewise holding a permanent position and was also about to retire. Petitioner was only given one-month pay for every year of service under the regular retirement plan while Dr. Buena was given a 2-month pay for every year of service under the Manpower Reduction Program. In its Comment to the petition, Respondent maintains that although it is a government-owned and controlled corporation, it has no original charter. Hence, it is not within the coverage of the Civil Service Law. It cites the decision in PNOC-EDC v. Leogardo,18 wherein we held that only corporations created by special charters are subject to the provisions of the Civil Service Law. Those without original charters are covered by the Labor Code. Respondent also asserts that R.A. No. 7699 is not applicable. Under this law an employee who has worked in both the private and public sectors and has been covered by both the Government Service Insurance System (GSIS) and the Social Security System (SSS), shall have his creditable services or contributions in both Systems credited to his service or contribution record in each of the Systems, which shall be summed up for purposes of old age, disability, survivorship and other benefits in case the covered member does not qualify for such benefits in either or both Systems without the totalization. Respondent further contends that petitioner was not discriminated upon when his application under the Manpower Reduction Program was denied. At the time of his retirement in 1995, redundancy was the main consideration for qualification for the Manpower Reduction Program. Petitioner was not qualified. However in 1996, in order to solve the companys business reversals, the new president, Dr. Nemesio Prudente, found it necessary to implement cos t-saving strategies, among which was the retrenchment of willing employees. Thus, the applications for retrenchment of Dr. Buena and Mrs. Reyes were approved. Respondent had the prerogative to amend its policies to meet the contingencies of the business for self-preservation. We rule in the negative the issue of whether petitioners servi ce with the DOH should be included in the computation of his retirement benefits. Respondents Retirement scheme19 pertinently provides: ARTICLE IV RETIREMENT BENEFITS SEC 4.1. Normal Retirement Date/Eligibility. -- The normal retirement date of an employee shall be the first day of the month next following the employees sixtieth (60th) birthday. To be eligible for the retirement benefit described under Sec. 4.2, the employee must have rendered at least ten (10) years of

continuous service with the Company. In case the retiring employee has rendered less than ten (10) years of service with the Company, he shall be entitled to one (1) months final monthly basic salary (12/12) for every year of service. SEC. 4.2. Normal Retirement Benefit. -- The retirement benefit shall be payable in lump sum upon retirement which shall be determined on the basis of the retirees final monthly basic salary (14/12) as follows: (a) One (1) months pay for every year of service for those who have completed at least twenty (20) years of continuous service with the Company. (b) One and one-half (1 1/2) months pay for every year of service for those who have completed twenty-one (21) to thirty (30) continuous years of service with the Company. (c) Two (2) months pay for every year of service for those who have completed at least thirty-one (31) years of service with the Company. It is clear therefrom that the creditable service referred to in the Retirement Plan is the retirees continuous years of ser vice with Respondent. Retirement results from a voluntary agreement between the employer and the employee whereby the latter after reaching a certain age agrees to sever his employment with the former.20 Since the retirement pay solely comes from Respondents funds, it is but natural that Respondent shall disregard petitioners length of service in another company for the computation of his retirement benefits. Petitioner was absorbed by Respondent from LUSTEVECO on 1 August 1979. Ordinarily, his creditable service shall be reckoned from such date. However, since Respondent took over the shipping business of LUSTEVECO and agreed to assume without interruption all the service credits of petitioner with LUSTEVECO,21 petitioners creditable service must start from 9 November 1977 wh en he started working with LUSTEVECO22 until his day of retirement on 1 April 1995. Thus, petitioners creditable service is 17.3333 years. We cannot uphold petitioners contention that his fourteen years of service with the DOH should be considered becaus e his last two employers were government-owned and controlled corporations, and fall under the Civil Service Law. Article IX(B), Section 2 paragraph 1 of the 1987 Constitution states -Sec. 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. It is not at all disputed that while Respondent and LUSTEVECO are government-owned and controlled corporations, they have no original charters; hence they are not under the Civil Service Law. In Philippine National Oil Company-Energy Development Corporation v. National Labor Relations Commission ,23 we ruled: xxx "Thus under the present state of the law, the test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law are [sic] the manner of its creation, such that government corporations created by special charter(s) are subject to its provisions while those incorporated under the General Corporation Law are not within its coverage." Consequently, Respondent was not bound by the opinion of the Civil Service Commission of 18 May 1993. Petitioners contention that the principle of tacking of creditable service is mandated by Republic Act No . 7699 is baseless. Section 3 of Republic Act No. 7699 reads: SEC 3. Provisions of any general or special law or rules and regulations to the contrary notwithstanding, a covered worker who transfer(s) employment from one sector to another or is employed in both sectors, shall have his creditable services or contributions in both systems credited to his service or contribution record in each of the Systems and shall be totalized for purposes of old-age, disability, survivorship, and other benefits in case the covered employee does not qualify for such benefits in either or both Systems without totalization: Provided, however, That overlapping periods of membership shall be credited only once for purposes of totalization (underscoring, ours). Obviously, totalization of service credits is only resorted to when the retiree does not qualify for benefits in either or both of the Systems. Here, petitioner is qualified to receive benefits granted by the Government Security Insurance System (GSIS), if such right has not yet been exercised. The pertinent provisions of law are: SEC. 12 Old Age Pension. -- (a) xxx (b) A member who has rendered at least three years but less than fifteen years of service at the time of separation shall, upon reaching sixty years of age or upon separation after age sixty, receive a cash payment equivalent to one hundred percent of his average monthly compensation for every year of service with an employer (Presidential Decree No, 1146, as amended, otherwise known as the Government Service Insurance Act of 1977). SEC. 4. All contributions paid by such member personally, and those that were paid by his employers to both Systems shall be considered in the processing of benefits which he can claim from either or both Systems: Provided, however, That the amount of benefits to be paid by one System shall be in proportion to the number of contributions actually remitted to that System (Republic Act No. 7699). In any case, petitioners fourteen years of service with the DOH may not remain uncompensat ed because it may be recognized by the GSIS pursuant to the aforequoted Section 12, as may be determined by the GSIS. Since petitioner may be entitled to some benefits from the GSIS, he cannot avail of the benefits under R.A. No. 7699.

It may also be pointed out that upon his receipt of the amount of P512,524.15 from Respondent as retirement benefit pursuant to its retirement scheme, petitioner signed and delivered to Respondent a Release and Undertaking wherein he waives all actions, causes of actions, debts, dues, monies and accounts in connection with his employment with Respondent.24 This quitclaim releases Respondent from any other obligation in favor of petitioner. While quitclaims executed by employees are commonly frowned upon as contrary to public policy and are ineffective to bar claims for the full measure of the employees legal rights, there are legitimate waivers that represent a voluntary and reasonable settlement of laborers claims which should be respected by the courts as the law b etween the parties.25 Settled is the rule that not all quitclaims are per se invalid or against public policy, except (1) where there is clear proof that the waiver was wangled from an unsuspecting or gullible person; and (2) where the terms of settlement are unconscionable on their face.26 We discern nothing from the record that would suggest that petitioner was coerced, intimidated or deceived into signing the Release and Undertaking. Neither are we convinced that the consideration for the quitclaim is unconscionable because it is actually the full amount of the retirement benefit provided for in the companys retirement plan. In light of the foregoing, we need not discuss any further the issue of whether petitioner was discriminated by Respondent in the implementation of the Manpower Reduction Program. In any event, that issue is factual and petitioner has failed to demonstrate that, indeed, he was discriminated upon. WHEREFORE, no reversible error on the part of the Respondent Court of Appeals having been shown, the petition in this case is DENIED and the appealed decision in CA-G.R. SP No. 51152 is hereby AFFIRMED. Costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-44061 September 20, 1976 MELANIA C. SALAZAR, petitioner, vs. ISMAEL MATHAY SR., Auditor-General and ABELARDO SUBIDO, Commissioner of Civil Service, respondents. Abelardo P. Andal for petitioner. Solicitor General Estelito P. Mendoza and Assistant Solicitor General Bernardo P. Pardo for respondents.

MARTIN, J.:t.hqw The main issue in this appeal is whether or not the services of petitioner as "confidential agent" in the Office of the Auditor, GSIS was validly terminated on the alleged ground of loss of confidence, and if not, whether or not she could still be reinstated to said position after accepting the position of Junior Examiner in the same office. On January 20, 1960, petitioner Melania C. Salazar was appointed by the Auditor General "confidential agent" in the Office of the Auditor General, Government Service Insurance System with compensation of P3,120.00 per annum, to take effect on January 27, 1960 upon her assumption of office. Her appointment was noted by the Commissioner of Civil Service under Section 5, paragraph (j) of Republic Act No. 2260, 1 subject to the usual physical and medical examination. On March 28, 1962 she was extended another appointment by way of promotion, as "confidential agent" in the same office with compensation of P3,300.00 per annum, to take effect on April 1, 1962. On August 28, 1964, her salary as "confidential agent" was adjusted to P4,200.00 per annum, effective July 1, 1964. 2 On February 12, 1965, the Acting Deputy Commissioner of the Civil Service issued a third indorsement to the Auditor General stating that the petitioner has qualified in the general examination held on February 27, 1969 and her appointment, which have been previously approved as provisional under section 24(c), Republic Act 2260, was approved anew subject to the usual physical and medical examination. 3 Again, on October 7, 1965, petitioner's salary as "confidential agent" was adjusted to P5,500.00 per annum effective July 1, 1965. 4 On March 18, 1966, much to her surprise, petitioner received a notice from the Auditor General that her services as "confidential agent" in the Office of the Auditor, Government Service Insurance System have been terminated as of the close of office hours on March 31, 1966. 5 On March 31, 1966, the Auditor General upon favorable recommendation of Mr. Pedro Encabo, Auditor of the Government Service Insurance System issued an appointment to petitioner Melania C. Salazar as Junior Examiner in his office with a compensation of P2,400.00 per annum, to take effect on April 1, 1966. Said appointment was approved by the Commission of Civil Service under Section 24(c) of Republic Act No. 2260 with a notice that general clerical eligibility is not appropriate for the position involved. 6 On the same day, petitioner assumed the position of Junior Examiner in the Office of the Auditor, GSIS, with the salary of P2,400.00 which was later adjusted to P2,580.00 per annum effective July 1, 1966. 7 On December 27, 1966, petitioner wrote the Commissioner of Civil Service requesting that she be reinstated to her former position as "confidential agent" in the Office of the Auditor, GSIS. 8 However, no action was taken on said letter. 9 On March 18, 1967, petitioner filed a petition for mandamus with the Supreme Court docketed as G.R. No. L-37256 to compel the Auditor General to reinstate her to her former position as "confidential agent" in the Office of the Auditor, GSIS, effective April 1, 1968 but the Supreme Court dismissed the petition for mandamus without prejudice to her filing the proper action to the Court of First Instance 10 which petitioner did by filing the proper action in the Court of First Instance of Manila an action for mandamus to compel the Auditor General to return her to her former position as "confidential agent" in the Office of the Auditor General. The crux of the problem in this appeal hinges on the nature of the position held by the petitioner in the Office of the Auditor, GSIS whether it is primarily confidential or not. If it is, then her services as confidential agent can be terminated any time at the pleasure of the appointing power. 11 There are two instances when a position may be considered primarily confidential: (1) When the President upon recommendation of the Commissioner of Civil Service (now Civil Service Commission) has declared the position to be primarily confidential; 12 or (2) In the absence of such declaration when by the nature of the functions of the office, there exists "close intimacy between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from misgiving or betrayals of personal trust or confidential matters of state." 13 In the case before Us, the provision of Executive Order No. 265, 14 declaring "... confidential agents in the several department and offices of the Government, unless otherwise directed by the President, to be primarily confidential" brings within the fold of the aforementioned executive order the position of confidential agent in the Office of the Auditor, GSIS, as among those positions which are primarily confidential. Since the position of the petitioner falls under the first category of primarily confidential positions, it is no longer necessary to inquire into the nature of the functions attached to the office in order to determine whether her position is primarily confidential or not. Her position being primarily confidential, petitioner cannot complain that the termination of her services as confidential agent in the Office of the Auditor, GSIS is in violation of her security of tenure. In the case of Delos Santos vs. Mallari, supra, primarily confidential positions are excluded from the merit system, and dismissal at pleasure of officers or employees therein is allowed by the Constitution, although in Ingles vs. Mutuc, 15 this assumption was held to be inaccurate. According to the Court, the proper expression to be used is that the term of the incumbent merely expires. Thus in said case, the Court held: +.wph!1 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 the same way as officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected, is not and cannot be deemed "removed" or "dismissed" therefrom, upon 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 of definite, whereas that of the former is not pre-fixed, but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this even takes place, the latter is not "removed" or "dismissed" from office his term has merely "expired." Accordingly, it can be said that petitioner was not removed from her office as confidential agent in the office of the Auditor, GSIS, but that her term in said position has already expired when the appointing power terminated her services. But even granting for the sake of argument, that petitioner's position was not primarily confidential and that therefore her removal from said position for loss of confidence was in violation of her security of tenure as a civil service employee, yet by her acceptance of the position of Junior Examiner in the Office of the Auditor, GSIS on April 1, 1976, she was deemed to have abandoned former position of "confidential agent" in the same office. To constitute abandonment, there must be a total abandonment to clearly indicate an absolute relinquishment of the office. 16 The officer should manifest a clear intention to abandon the office and its duties which may be inferred from his conduct. In one case, the Court held that abandonment of an office by reason of the acceptance of another, in order to be effective and binding should spring from and be accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another. 17 In the instant case, the day after her services as "confidential agent" in the Office of the Auditor, Government Service Insurance System were terminated, petitioner accepted unqualifiedly the position of Junior Examiner in the same office. She took her oath of office, performed the duties thereof and received her salary. All these clearly indicate that she has completely abandoned her former position. In Summers vs. Ozaeta, 18 a cadastral judge accepted the position of judge-at-large of the Court of First Instance, took his office as such, performed the powers and duties thereof, and withdraw the salary of judge-at-large, the Court held that he has abandoned his former position. In Agapuyan vs. Ledesma, 19 where an acting chief of police after his removal from office accepted an appointment as a permanent anger in the Bureau of Forestry, the Court likewise held that he was deemed to have abandoned his former office. That petitioner had the clear intention to abandon her old position is firmed up by the fact that after her services as "confidential agent" in the Office of the Auditor, GSIS, she did not even bother to find out the reason for the termination of her services. Right the next day, she accepted the position of Junior Examiner in the same office. It took almost a year when she changed her mind and wanted to return to her old position. Certainly, by her conduct she has shown her clear intention to abandon it. WHEREFORE, the decision appealed from is hereby affirmed with costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-3881 August 31, 1950

EDUARDO DE LOS SANTOS, petitioner, vs. GIL R. MALLARE, LUIS P. TORRES, in his capacity as City Mayor, PANTALEON PIMENTEL, in his capacity as City Treasurer and RAFAEL USON, in his capacity as City Auditor, respondents. Francisco S. Reyes for petitioner. Office of the Solicitor General Felix Bautista Angelo and Solicitor Augusto Luciano for respondents. Jose P. Laurel and Abelardo Subido as amici curiae. TUASON, J.: This is an original action of quo warranto questioning the legality of the appointment of respondent Gil R. Mallare to the office of city engineer for the City of Baguio which the petitioner occupied and claims to be still occupying. The real issue however is the legality of the petitioner's removal from the same office which would be the effect of Mallare's appointment if the same be allowed to stand. It is the petitioner's contention that under the Constitution he can not be removed against his will and without cause. The complaint against the other respondents has to do merely with their recognition of Mallare as the lawful holder of the disputed office and is entirely dependent upon the result of the basic action against the last-mentioned respondent (Mallare). Stripped of details unessential to the solution of the case, the facts are that Eduardo de los Santos, the petitioner, was appointed City Engineer of Baguio on July 16, 1946, by the President, appointment which was confirmed by the Commission on Appointments on August 6, and on the 23rd of that month, he qualified for and began to exercise the duties and functions of the position. On June 1, 1950, Gil R. Mallare was extended an ad interim appointment by the President to the same position, after which, on June 3, the Undersecretary of the Department of Public Works and Communications directed Santos to report to the Bureau of Public Works for another assignment. Santos refused to vacate the office, and when the City Mayor and the other officials named as Mallare's co-defendants ignored him and paid Mallare the salary corresponding to the position, he commenced these proceedings. The petitioner rests his case on Article XII of the Constitution, section 4 of which reads: "No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law." It is admitted in respondents' answer that the City Engineer of Baguio "belongs to the unclassified service." And this Court, in an exhaustive opinion by Mr. Justice Montemayor in the case of Lacson vs. Romero, 47 Off. Gaz., 1778, involving the office of provincial fiscal, ruled that officers or employees in the unclassified as well as those in the classified service are protected by the above-cited provision of the organic law. But there is this difference between the Lacson case and the case at bar: Section 2545 of the Revised Administrative Code, which falls under Chapter 61 entitled "City of Baguio," authorizes the Governor General (now the President) to remove at pleasure any of the officers enumerated therein, one of whom is the city engineer. The first question that presents itself is, is this provision still in force? Section 2 of Article XVI of the Constitution declares that "All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the Congress of the Philippines, . . . ." It seems plain beyond doubt that the provision of section 2545 of the Revised Administrative Code, he (Governor-General now President) may remove at pleasure any of the said appointive officers," is incompatible with the constitutional inhibition that "No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law." The two provisions are mutually repugnant and absolutely irreconcilable. One in express terms permits what the other in similar terms prohibits. The Constitution leaves it to the Congress to provide for the cause of removal, and it is suggested that the President's pleasure is itself a cause. The phrase "for cause" in connection with the removals of public officers has acquired a well-defined concept. "It means for reasons which the law and sound public policy recognized as sufficient warrant for removal, that is, legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient. It is implied that officers may not be removed at the mere will of those vested with the power of removal, or without any cause. Moreover, the cause must relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public."(43 Am. Jur., 47, 48.) Reconsideration of the decision in Lacson vs. Romero as far as officers in the unclassified service are concerned is urged. It is contended that only officers and employees in the classified service should be brought within the purview of Article XII of the Constitution. Section 1 of this article ordains: "A Civil Service embracing all branches and subdivisions of the Government shall be provided by law. Appointments in the Civil Service, except as 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." The first clause is a definition of the scope of Civil Service, the men and women which section 4 protects. It seems obvious from that definition that the entire Civil Service is contemplated, except positions "which are policy-determining, primarily confidential or highly technical in nature." This theory is confirmed by the enactment of Commonwealth Act No. 177 on November 30, 1936 to implement Article XII of the Constitution. Commonwealth Act No. 177 explains Civil Service almost in the identical words of that article of the organic law. As a contemporaneous construction, this Act affords an index to the meaning of Civil Service as conceived by the framers of the Constitution. "The principle of contemporaneous construction may be applied to the construction given by the legislature to the constitutional provisions dealing with legislative powers and procedure. Though not conclusive, such interpretation is generally conceded as being entitled to great weight." (U.S. vs. Sprague, 282 U.S., 716; 75 L. ed. 640; 51 S. Ct., 220; 71 A.L.R., 1381; Den ex dem. Murray vs. Hoboken Land and Improv. Co., 18 How. [U.S.], 272; 15 L. ed., 372; Clark vs. Boyce, 20 Ariz., 544; 185 P., 136, citing R.C.L.; 11 Am. Jur. 699.) The principle of express mention and implied exclusion may be made use of also to drive home this point.

We are led to the same conclusion by the existing provisions at the time of the adoption of the Constitution. Civil Service as embracing both classes of officers and employees possessed definite legal and statutory meaning when the Constitution was approved. Section 670 of the Revised Administrative Code already provided that "Persons in the Philippine civil service pertain either to the classified service," and went on to say that "The classified service embraces all not expressly declared to be in the unclassified service." Then section 671 described persons in the unclassified service as "officers, other than the provincial treasurers and assistant directors of bureaus or offices, appointed by the President of the Philippines, with the consent of the Commission on Appointments of the National Assembly, and all other officers of the government whose appointments are by law vested in the President of the Philippines alone." The rules of the construction inform us that the words use in the constitution are to be given the sense they have in common use. (Okanogan Indians vs. United States, 279, U.S., 665; 64 A.L.R., 1434; 73 Law ed., 894.) It has been said that we must look to the history of the times, examine the state of things existing when the Constitution was framed and adopted, (Rhode Islands vs. Massachusetts, 12 Pet., 657; 9 Law ed., 1233), and interpret it in the light of the law then in operation. (Mattox vs. United States, 156, U.S., 237; 39 Law ed., 409.) Attention is drawn to supposed inconveniences of tying the hands of the appointing power in changing and shifting officers in the unclassified service. "If it is argued all important officers and employees of the government falling within the unclassified service as enumerated in section 671 of the Revised Administrative Code as amended by Commonwealth Act No. 177, may not be removed by the President except for cause as provided by law, . . . the President would be seriously crippled in the discharge of the grave duty and responsibility laid upon him by the Constitution to take care that the laws faithfully executed." Questions of expediency are, of course, beyond the province of the court to take into account in the interpretation of laws or of the Constitution where the language is otherwise clear. But the argument is, we think, unsound even if the case be approached from this angle. It contains its own refutation. The Constitution and the law implementing it afford adequate safeguards against such consequences as have been painted. The argument proceeds, contrary to its context, on the assumption that removes of civil service officers and employees are absolutely prohibited, which is not the case. The Constitution authorizes removals and only requires that they be for cause. And the occasions for removal would be greatly diminished if the injunction of section 1 of Article XII of the Constitution that appointments in the civil service shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination would be adhered of meticulously in the first place. By far greater mischiefs would be fomented by an unbridled authority to remove. Such license would thwart the very aims of the Constitution which are expounded by Dean Aruego, himself a member of the Constitutional Convention, in the following remarks copied with approval in Lacson vs. Romero, supra: The adoption of the "merit system" in government service has secured efficiency and social justice. It eliminates the political factor in the selection of civil employees which is the first essential to an efficient personnel system. It insures equality of opportunity to all deserving applicants desirous of a career in the public service. It advocates a new concept of the public office as a career open to all and not the exclusive patrimony of any party or faction to be doled out as a reward for party service. The "merit system" was adopted only after the nations of the world took cognizance of its merits. Political patronage in the government service was sanctioned in 1879 by the Constitutional right of President of the United States to act alone in the matter of removals. From the time of Andrew Jackson the principle of the "To the victor belongs the spoils' dominated the Federal Government. The system undermined moral values and destroyed administrative efficiency. Since the establishment of the American Regime in the Philippines we have enjoyed the benefits of the "merit system." The Schurmann Commission advocated in its reports that "the greatest care should be taken in the selection of the officials for administration. They should be men of the highest character and fitness, and partisan politics should be entirely separated from the government." The fifth act passed by the Philippine Commission created a Board of Civil Service. It instituted a system here that was far more radical and thorough than that in the United States. The Governor-General after William Taft adopted the policy of appointing Filipinos in the government regardless of their party affiliation. As the result of these the personnel of the Civil Service had gradually come to be one of which the people of the United States could feel justly proud. Necessity for Constitutional provision. The inclusion in the constitution of provisions regarding the "merit system" is a necessity of modern times. As its establishment secures good government the citizens have a right to accept its guarantee as a permanent institution. Separation, suspension, demotions and transfers. The "merit system" will be ineffective if no safeguards are placed around the separation and removal of public employees. The Committee's report requires that removals shall be made only for "causes and in the manner provided by law. This means that there should be bona fide reasons and action maybe taken only after the employee shall have been given a fair hearing. This affords the public employees reasonable security of tenure. (II Aruego's Framing of the Constitution, 886, 887, 890.) As has been seen, three specified classes of positions policy-determining, primarily confidential and highly technical are excluded from the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution. These positions involved the highest degree of confidence, or are closely bound out with and dependent on other positions to which they are subordinate, or are temporary in nature. It may truly be said that the good of the service itself demands that appointments coming under this category determinable at the will of the officer that makes them. The office of city engineer is neither primarily confidential, policy-determining, nor highly technical. Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. Nor is the position of city engineer policy-determining. A city engineer does not formulate a method of action for the government or any its subdivisions. His job is to execute policy, not to make it. With specific reference to the City Engineer of Baguio, his powers and duties are carefully laid down for him be section 2557 of the Revised Administrative Code and are essentially ministerial in character. Finally, the position of city engineer is technical but not highly so. A city engineer is not required nor is he supposed to possess a technical skill or training in the supreme or superior degree, which is the sense in which "highly technical" is, we believe, employed in the Constitution. There are hundreds of technical men in the classified civil service whose technical competence is not lower than that of a city engineer. As a matter of fact, the duties of a city engineer are eminently administrative in character and could very well be discharged by non-technical men possessing executive ability.

Section 10 of Article VIII of the Constitution requires that "All cases involving the constitutionality of a treaty or law shall be heard and decided by the Supreme Court in banc," and warns that "no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the Court." The question arises as to whether this judgment operates as invalidation of section 2545 of the Revised Administrative Code or a part of it so as to need at least eight votes to make effective. The answer should be in negative. We are not declaring any part of section 2545 of the Revised Administrative Code unconstitutional. What we declare is that the particular provision thereof which gave the Chief Executive power to remove officers at pleasure has been repealed by the Constitution and ceased to be operative from the time that instrument went into effect. Unconstitutionally, as we understand it, denotes life and vigor, and unconstitutional legislation presupposes posteriority in point of time to the Constitution. It is a statute that "attempts to validate and legalize a course of conduct the effect of which the Constitution specifically forbids (State ex-rel. Mack vs. Guckenberger, 139 Ohio St., 273; 39 NE. [2d], 840.) A law that has been repealed is as good as if it had never been enacted, and can not, in the nature of things, contravene or pretend to contravene constitutional inhibition. So, unlike legislation that is passed in defiance of the Constitution, assertive and menacing, the questioned part of section 2545 of the Revised Administrative Code does not need a positive declaration of nullity by the court to put it out of the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the statute book by the Constitution itself by express mandate before this petitioner was appointed. Incidentally, the last discussion answers and disposes of the proposition that in accepting appointment under section 2545 of the Revised Administrative Code, the petitioner must be deemed to have accepted the conditions and limitations attached to the appointment. If the clause of section 2545 which authorized the President to remove officers of the City of Baguio at pleasure had been abrogated when petitioner's appointment was issued, the appointee can not presumed to have abided by this condition. We therefore hold that the petitioner is entitled to remain in office as City Engineer of Baguio with all the emoluments, rights and privileges appurtenant thereto, until he resigns or is removed for cause, and that respondent Mallare's appointment is ineffective in so far as it may adversely affect those emoluments, rights and privileges. Without costs.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 123708

June 19, 1997

CIVIL SERVICE COMMISSION and PHILIPPINE AMUSEMENT AND GAMING CORPORATION, petitioners, vs. RAFAEL M. SALAS, respondent.

REGALADO, J.: The present petition for review on certiorari seeks to nullify the decision of the Court of Appeals, dated September 14, 1995, in CA-G.R. SP No. 38319 which set aside Resolution No. 92-1283 of the Civil Service Commission (CSC) and ordered the reinstatement of herein private respondent Rafael M. Salas with full back wages for having been illegally dismissed by the Philippine Amusement and Gaming Corporation (PAGCOR), but without prejudice to the filing of administrative charges against him if warranted. 1 The records disclose that on October 7, 1989, respondent Salas was appointed by the PAGCOR Chairman as Internal Security Staff (ISS) member and assigned to the casino at the Manila Pavilion Hotel. However, his employment was terminated by the Board of Directors of PAGCOR on December 3, 1991, allegedly for loss of confidence, after a covert investigation conducted by the Intelligence Division of PAGCOR. The summary of intelligence information claimed that respondent was allegedly engaged in proxy betting as detailed in the affidavits purportedly executed by two customers of PAGCOR who claimed that they were used as gunners on different occasions by respondent. The two polygraph tests taken by the latter also yielded corroborative and unfavorable results. On December 23, 1991, respondent Salas submitted a letter of appeal to the Chairman and the Board of Directors of PAGCOR, requesting reinvestigation of the case since he was not given an opportunity to be heard, but the same was denied. On February 17, 1992, he appealed to the Merit Systems Protection Board (MSPB) which denied the appeal on the ground that, as a confidential employee, respondent was not dismissed from the service but his term of office merely expired. On appeal, the CSC issued Resolution No. 92-1283 which affirmed the decision of the MSPB. 2 Respondent Salas initially went to this Court on a petition for certiorari assailing the propriety of the questioned CSC resolution. However, in a resolution dated August 15, 1995, 3 the case was referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95 which took effect on June 1, 1995. On September 14, 1995, the Court of Appeals rendered its questioned decision with the finding that herein respondent Salas is not a confidential employee, hence he may not be dismissed on the ground of loss of confidence. In so ruling, the appellate court applied the "proximity rule" enunciated in the case of Grio, et al. vs. Civil Service Commission, et al. 4 It likewise held that Section 16 of Presidential Decree No. 1869 has been superseded and repealed by Section 2(1), Article IX-B of the 1987 Constitution. Hence this appeal, which is premised on and calls for the resolution of the sole determinative issue of whether or not respondent Salas is a confidential employee. Petitioners aver that respondent Salas, as a member of the Internal Security Staff of PAGCOR, is a confidential employee for several reasons, viz.: (1) Presidential Decree No. 1869 which created the Philippine Amusement and Gaming Corporation expressly provides under Section 16 thereof that all employees of the casinos and related services shall be classified as confidential appointees; (2) In the case of Philippine Amusement and Gaming Corporation vs. Court of Appeals, et al., 5 the Supreme Court has classified PAGCOR employees as confidential appointees; (3) CSC Resolution No. 91-830, dated July 11, 1991, has declared employees in casinos and related services as confidential appointees by operation of law; and (4) Based on his functions as a member of the ISS, private respondent occupies a confidential position. Whence, according to petitioners, respondent Salas was not dismissed from the service but, instead, his term of office had expired. They additionally contend that the Court of Appeals erred in applying the "proximity rule" because even if Salas occupied one of the lowest rungs in the organizational ladder of PAGCOR, he performed the functions of one of the most sensitive positions in the corporation. On the other hand, respondent Salas argues that it is the actual nature of an employee's functions, and not his designation or title, which determines whether or not a position is primarily confidential, and that while Presidential Decree No. 1869 may have declared all PAGCOR employees to be confidential appointees, such executive pronouncement may be considered as a mere initial determination of the classification of positions which is not conclusive in case of conflict, in light of the ruling enunciated in Tria vs. Sto. Tomas, et al. 6 We find no merit in the petition and consequently hold that the same should be, as it is hereby, denied.

Section 2, Rule XX of the Revised Civil Service Rules, promulgated pursuant to the provisions of Section 16(e) of Republic Act No. 2260 (Civil Service Act of 1959), which was then in force when Presidential Decree No 1869 creating the Philippine Amusement and Gaming Corporation was passed, provided that "upon recommendation of the Commissioner, the President may declare a position as policy-determining, primarily confidential, or highly technical in nature." It appears that Section 16 of Presidential Decree No. 1869 was predicated t thereon, with the text thereof providing as follows: All positions in the corporation, whether technical, administrative, professional or managerial are exempt from the provisions of the Civil Service Law, rules and regulations, and shall be governed only by the personnel management policies set by the Board of Directors. All employees of the casinos and related services shall be classified as "confidential" appointees. On the strength of this statutory declaration, petitioner PAGCOR terminated the services of respondent Salas for lack of confidence after it supposedly found that the latter was engaged in proxy betting. In upholding the dismissal of respondent Salas, the CSC ruled that he is considered a confidential employee by operation of law, hence there is no act of dismissal to speak of but a mere expiration of a confidential employee's term of office, such that a complaint for illegal dismissal will not prosper in this case for lack of legal basis. In reversing the decision of the CSC, the Court of Appeals opined that the provisions of Section 16 of Presidential Decree No. 1869 may no longer be applied in the case at bar because the same is deemed to have been repealed in its entirety by Section 2(1), Article IX-B of the 1987 Constitution. 7 This is not completely correct. On this point, we approve the more logical interpretation advanced by the CSC to the effect that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has been amended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292 (Administrative Code of 1987)." However, the same cannot be said with respect to the last portion of Section 16 which provides that "all employees of the casino and related services shall be classified as 'confidential' appointees." While such executive declaration emanated merely from the provisions of Section 2, Rule XX of the implementing rules of the Civil Service Act of 1959, the power to declare a position as policy-determining, primarily confidential or highly technical as defined therein has subsequently been codified and incorporated in Section 12(9), Book V of Executive Order No. 292 or the administrative Code of 1987. 8 This later enactment only serves to bolster the validity of the categorization made under Section 16 of Presidential Decree No. 1869. Be that as it may, such classification is not absolute and 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 freedom from misgivings of betrayals of personal trust or confidential matters of state. 9 At first glance, it would seem that the instant case falls under the first category by virtue of the express mandate under Section 16 of Presidential Decree No. 1869. An in-depth analysis, however, of the second category evinces otherwise. When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that "the 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." In the case of Piero, et al. vs. Hechanova, et al., 10 the Court obliged with a short discourse there on how the phrase "in nature" came to find its way into the law, thus: The change from the original wording of the bill (expressly declared by law . . . to be policy-determining, etc.) to that finally approved and enacted ("or which are policy-determining, etc. in nature") came about because of the observations of Senator Taada, that as originally worded the proposed bill gave Congress power to declare 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, policy-determining or highly technical in nature," it is not within the power of Congress to declare what positions are primarily confidential or policy-determining. "It is the nature alone of the position that determines whether it is policy-determining or primarily confidential." Hence, the Senator further observed, the matter should be left to the "proper implementation of the laws, depending upon the nature of the position to be filled", and if the position is "highly confidential" then the President and the Civil Service Commissioner must implement the law. To a question of Senator Tolentino, "But in positions that involved both confidential matters and matters which are routine, . . . who is going to determine whether it is primarily confidential?" Senator Taada replied: SENATOR TAADA: Well, at the first instance, it is the appointing power that determines that: the nature of the position. In case of conflict then it is the Court that determines whether the position is primarily confidential or not (Emphasis in the original text). Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the nature of the position which finally determines whether a position is primarily confidential, policy-determining or highly technical. And the Court in the aforecited case explicity decreed that executive pronouncements, such as Presidential Decree No. 1869, can be no more than initial determinations that are not conclusive in case of conflict. It must be so, or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII (now Section 2[3], Article IX-B) of the Constitution. 11 In other words, Section 16 of Presidential Decree No. 1869 cannot be given a literally stringent application without compromising the constitutionally protected right of an employee to security of tenure. The doctrinal ruling enunciated in Piero finds support in the 1935 Constitution and was reaffirmed in the 1973 Constitution, as well as in the implementing rules of Presidential Decree No. 807, or the Civil Service Decree of the Philippines. 12 It may well be observed that both the 1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B thereof, that "appointments in the Civil Service, except as to those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination." Corollarily, Section 5 of Republic Act No. 2260 states that "the non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-determining, primarily confidential, or highly technical in nature." Likewise, Section 1 of the General Rules in the implementing rules of Presidential Decree No. 807 states that "appointments in the Civil Service, except as to those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness to be determined as far as practicable by competitive examination." Let it here be emphasized, as we have accordingly italicized them, that these fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to describe the character of the positions being classified.

The question that may now be asked is whether the Piero doctrine to the effect that notwithstanding any statutory classification to the contrary, it is still the nature of the position, as may be ascertained by the court in case of conflict, which finally determines whether a position is primarily confidential, policy-determining or highly technical is still controlling with the advent of the 1987 Constitution and the Administrative Code of 1987, 13 Book V of which deals specifically with the Civil Service Commission, considering that from these later enactments, in defining positions which are policy-determining, primarily confidential or highly technical, the phrase "in nature" was deleted. 14 We rule in the affirmative. The matter was clarified and extensively discussed during the deliberations in the plenary session of the 1986 Constitutional Commission on the Civil Service provisions, to wit: MR. FOZ. Which department of government has the power or authority to determine whether a position is policy-determining or primarily confidential or highly technical? FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but the final decision is done by the court. The Supreme Court has constantly held that whether or not a position is policy-determining, primarily confidential or highly technical, it is determined not by the title but by the nature of the task that is entrusted to it. For instance, we might have a case where a position is created requiring that the holder of that position should be a member of the Bar and the law classifies this position as highly technical. However, the Supreme Court has said before that a position which requires mere membership in the Bar is not a highly technical position. Since the term "highly technical" means something beyond the ordinary requirements of the profession, it is always a question of fact. MR. FOZ. Does not Commissioner Bernas agree that the general rule should be that the merit system or the competitive system should be upheld? FR. BERNAS. I agree that that should be the general rule; that is why we are putting this as an exception. MR. FOZ. The declaration that certain positions are policy-determining, primarily confidential or highly technical has been the source of practices which amount to the spoils system. FR. BERNAS. The Supreme Court has always said that, but if the law of the administrative agency says that a position is primarily confidential when in fact it is not, we can always challenge that in court. It is not enough that the law calls it primarily confidential to make it such; it is the nature of the duties which makes a position primarily confidential. MR. FOZ. The effect of a declaration that a position is policy-determining, primarily confidential or highly technical as an exception is to take it away from the usual rules and provisions of the Civil Service Law and to place it in a class by itself so that it can avail itself of certain privileges not available to the ordinary run of government employees and officers. FR. BERNAS. As I have already said, this classification does not do away with the requirement of merit and fitness. All it says is that there are certain positions which should not be determined by competitive examination . For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we require a physicist to undergo a competitive examination before appointment? Or a confidential secretary or any position in policy-determining administrative bodies, for that matter? There are other ways of determining merit and fitness than competitive examination. This is not a denial of the requirement of merit and fitness (Emphasis supplied). 15 It is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers of the 1987 Constitution in providing for the declaration of a position as policy-determining, primarily confidential or highly technical is to exempt these categories from competitive examination as a means for determining merit and fitness. It must be stressed further that these positions are covered by security of tenure, although they are considered non-competitive only in the sense that appointees thereto do not have to undergo competitive examinations for purposes of determining merit and fitness. In fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution wherein it stated that "the declaration of a position as primarily confidential if at all, merely exempts the position from the civil service eligibility requirement." According, the Piero doctrine continues to be applicable up to the present and is hereby maintained. Such being the case, the submission that PAGCOR employees have been declared confidential appointees by operation of law under the bare authority of CSC Resolution No. 91-830 must be rejected. We likewise find that in holding that herein private respondent is not a confidential employee, respondent Court of Appeals correctly applied the "proximity rule" enunciated in the early but still authoritative case of De los Santos vs. Mallare, et al., 16 which held that: Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. . . . (Emphasis supplied). This was reiterated in Piero, et al. vs. Hechanova, et al., supra, the facts of which are substantially similar to the case at bar, involving as it did employees occupying positions in various capacities in the Port Patrol Division of the Bureau of Customs. The Court there held that the mere fact that the members of the Port Patrol Division are part of the Customs police force is not in itself a sufficient indication that their positions are primarily confidential. After quoting the foregoing passage from De los Santos, it trenchantly declared: As previously pointed out, there are no proven facts to show that there is any such close intimacy and trust between the appointing power and the appellees as would support a finding that confidence was the primary reason for the existence of the positions held by them or for their appointment thereto. Certainly, it is extremely improbable that the service demands any such close trust and intimate relation between the

appointing official and, not one or two members alone but the entire Customs patrol (Harbor Police) force, so that every member thereof can be said to hold "primarily confidential" posts. (Emphasis supplied). It can thus be safely determined therefrom that the occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing authority was, to repeat, the latter's belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion, without fear of embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal, where the position occupied is remote from that of the appointing authority, the element of trust between them is no longer predominant. 17 Several factors lead to the conclusion that private respondent does not enjoy such "close intimacy" with the appointing authority of PAGCOR which would otherwise place him in the category of a confidential employee, to wit: 1. As an Internal Security Staff member, private respondent routinely a. performs duty assignments at the gaming and/or non-gaming areas to prevent irregularities, misbehavior, illegal transactions and other anomalous activities among the employees and customers; b. reports unusual incidents and related observations/information in accordance with established procedures for infractions/mistakes committed on the table and in other areas; c. coordinates with CCTV and/or external security as necessary for the prevention, documentation or suppression of any unwanted incidents at the gaming and non-gaming areas; d. acts as witness/representative of Security Department during chips inventory, refills, yields, card shuffling and final shuffling; e. performs escort functions during the delivery of table capital boxes, refills and shoe boxes to the respective tables, or during transfer of yields to Treasury. 18 Based on the nature of such functions of herein private respondent and as found by respondent Court of Appeals, while it may be said that honesty and integrity are primary considerations in his appointment as a member of the ISS, his position does not involve "such close intimacy" between him and the appointing authority, that is, the Chairman of PAGCOR, as would insure "freedom from misgivings of betrayals of personal trust." 19 2. Although appointed by the Chairman, ISS members do not directly report to the Office of the Chairman in the performance of their official duties. An ISS member is subject to the control and supervision of an Area Supervisor who, in turn, only implements the directives of the Branch Chief Security Officer. The latter is himself answerable to the Chairman and the Board of Directors. Obviously, as the lowest in the chain of command, private respondent does not enjoy that "primarily close intimacy" which characterizes a confidential employee. 3. The position of an ISS member belongs to the bottom level of the salary scale of the corporation, being in Pay Class 2 level only, whereas the highest level is Pay Class 12. Taking into consideration the nature of his functions, his organizational ranking and his compensation level, it is obviously beyond debate that private respondent cannot be considered a confidential employee. As set out in the job description of his position, one is struck by the ordinary, routinary and quotidian character of his duties and functions. Moreover, the modest rank and fungible nature of the position occupied by private respondent is underscored by the fact that the salary attached to it is a meager P2,200.00 a month. There thus appears nothing to suggest that private respondent's position was "highly" or, much less, "primarily" confidential in nature. The fact that, sometimes, private respondent may handle ordinarily "confidential matters" or papers which are somewhat confidential in nature does not suffice to characterize his position as primarily confidential. 20 In addition, the allegation of petitioners that PAGCOR employees have been declared to be confidential appointees in the case of Philippine Amusement and Gaming Corporation vs. Court of Appeals, et al., ante, is misleading. What was there stated is as follows: The record shows that the separation of the private respondent was done in accordance with PD 1869, which provides that the employees of the PAGCOR hold confidential positions. Montoya is not assailing the validity of that law. The act that he is questioning is what he calls the arbitrary manner of his dismissal thereunder that he avers entitled him to damages under the Civil Code. (Emphasis ours). Thus, the aforecited case was decided on the uncontested assumption that the private respondent therein was a confidential employee, for the simple reason that the propriety of Section 16 of Presidential Decree No. 1869 was never controverted nor raised as an issue therein. That decree was mentioned merely in connection with its provision that PAGCOR employees hold confidential positions. Evidently, therefore, it cannot be considered as controlling in the case at bar. Even the fact that a statute has been accepted as valid in cases where its validity was not challenged does not preclude the court from later passing upon its constitutionality in an appropriate cause where that question is squarely and properly raised. Such circumstances merely reinforce the presumption of constitutionality of the law. 21 WHEREFORE, the impugned judgment of respondent Court of Appeals is hereby AFFIRMED in toto. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 127838 January 21, 1999 CIVIL SERVICE COMMISSION, petitioner, vs. JOSE J. LUCAS, respondent.

PARDO, J.: The petition for review on certiorari before the Court assails the decision of the Court of Appeals 1 which set aside the resolution of the Civil Service Commission 2 and reinstated that of the Board of Personnel Inquiry (BOPI for brevity), Office of the Secretary, Department of Agriculture, 3 suspending respondent for one month, for simple misconduct. To provide a factual backdrop of the case, a recital of the facts is necessary. On May 26, 1992, Raquel P. Linatok, an assistant information officer at the Agricultural Information Division, Department of Agriculture (DA for brevity), filed with the office of the Secretary, DA, an affidavit-complaint against respondent Jose J. Lucas, a photographer of the same agency, for misconduct. Raquel described the incident in the following manner: While standing before a mirror, near the office door of Jose J. Lucas, Raquel noticed a chair at her right side which Mr. Jose Lucas, at that very instant used to sit upon. Thereafter, Mr. Lucas bent to reach for his shoe. At that moment she felt Mr. Lucas' hand touching her thigh and running down his palm up to her ankle. She was shocked and suddenly faced Mr. Lucas and admonished him not to do it again or she will kick him. But Lucas touched her again and so she hit Mr. Lucas. Suddenly Mr. Lucas shouted at her saying "lumabas ka na at huwag na huwag ka nang papasok dito kahit kailan" A verbal exchange then ensued and respondent Lucas grabbed Raquel by the arm and shoved her towards the door causing her to stumble, her both hands protected her face from smashing upon the door. Mr. Lucas, bent on literally throwing the affiant out of the office, grabbed her the second time while she attempted to regain her posture after being pushed the first time. . . . while doing all this, Mr. Lucas shouted at the affiant, saying, "labas, huwag ka nang papasok dito kahit kailan". 4 On June 8, 1992, the Board of Personnel Inquiry, DA, issued a summons requiring respondent to answer the complaint, not to file a motion to dismiss, within five (5) days from receipt. On June 17, 1992, respondent Lucas submitted a letter to Jose P. Nitullano, assistant head, BOPI, denying the charges. According to Lucas, he did not touch the thigh of complainant Linatok, that what transpired was that he accidentally brushed Linatok's leg when he reached for his shoes and that the same was merely accidental and he did not intend nor was there malice when his hand got in contact with Linatok's leg. On May 31, 1993, after a formal investigation by the BOPI, DA, the board issued a resolution finding respondent guilty of simple misconduct 5 and recommending a penalty of suspension for one (1) month and one (1) day. The Secretary of Agriculture approved the recommendation. In due time, respondent appealed the decision to the Civil Service Commission (CSC). On July 7, 1994, the CSC issued a resolution finding respondent guilty of grave misconduct and imposing on him the penalty of dismissal from the service. 6 Respondent moved for reconsideration but the CSC denied the motion. Then, respondent appealed to the Court of Appeals. On October 29, 1996, the Court of Appeals promulgated its decision setting aside the resolution of the CSC and reinstating the resolution of the BOPI, DA, stating thus: "It is true that the Civil Service Act does not define grave and simple misconduct. There is, however, no question that these offenses fall under different categories. This is clear from a perusal of memorandum circular No. 49-89 dated August 3, 1989 (also known as the guidelines in the application of penalties in administrative cases) itself which classifies administrative offenses into three: grave, less grave and light offenses. The charge of grave misconduct falls under the classification of grave offenses while simple misconduct is classified as a less grave offense. The former is punishable by dismissal while the latter is punishable either by suspension (one month and one day to six months), if it is the first offense; or by dismissal, if it is the second. Thus, they should be treated as separate and distinct offenses. 7 The Court of Appeals further ruled that "a basic requirement of due process on the other hand is that a person must be duly informed of the charges against him (Felicito Sajonas vs. National Labor Relations Commission, 183 SCRA 182). In the instant case however, Lucas came to know of the modification of the charge against him only when he received notice of the resolution dismissing him from the service. 8 Hence, this petition. The issues are (a) whether respondent Lucas was denied due process when the CSC found him guilty of grave misconduct on a charge of simple misconduct, and (b) whether the act complained of constitutes grave misconduct.

Petitioner anchors its position on the view that "the formal charge against a respondent in an administrative case need not be drafted with the precision of an information in a criminal prosecution. It is sufficient that he is apprised of the substance of the charge against him; what is controlling is the allegation of the acts complained of, and not the designation of the offense. 9 We deny the petition. As well stated by the Court of Appeals, there is an existing guideline of the CSC distinguishing simple and grave misconduct. In the case of Landrito vs. Civil Service Commission, we held that "in grave misconduct as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of established rule, must be manifest, 10 which is obviously lacking in respondent's case. Respondent maintains that as he was charged with simple misconduct, the CSC deprived him of his right to due process by convicting him of grave misconduct. We sustain the ruling of the Court of Appeals 11 that: (a) a basic requirement of due process is that a person must be duly informed of the charges against him 12 and that (b) a person can not be convicted of a crime with which he was not charged. 13 Administrative proceedings are not exempt from basic and fundamental procedural principles, such as the right to due process in investigations and hearings. 14 The right to substantive and procedural due process is applicable in administrative proceedings. 15 Of course, we do not in any way condone respondent's act. Even in jest, he had no right to touch complainant's leg. However, under the circumstances, such act is not constitutive of grave misconduct, in the absence of proof that respondent was maliciously motivated. We note that respondent has been in the service for twenty (20) years and this is his first offense. IN VIEW WHEREOF, the Court hereby DENIES the petition for review on certiorari and AFFIRMS the decision of the Court of Appeals in CA-G.R. SP No. 37137.1wphi1.nt No cost. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 166715 August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners, vs. HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents. DECISION CORONA, J.: This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act (RA) 93352 (Attrition Act of 2005). RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their revenue targets by providing a system of rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board).3 It covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of employment status.4 The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from the fund and allocated to the BIR and the BOC in proportion to their contribution in the excess collection of the targeted amount of tax revenue.5 The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the Director General of the National Economic Development Authority (NEDA) or his/her Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file employees and a representative from the officials nominated by their recognized organization.6 Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the Fund; (2) set criteria and procedures for removing from the service officials and employees whose revenue collection falls short of the target; (3) terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions, including the issuance of rules and regulations and (6) submit an annual report to Congress.7 The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the implementing rules and regulations of RA 9335,8 to be approved by a Joint Congressional Oversight Committee created for such purpose. 9 Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax reform legislation. They contend that, by establishing a system of rewards and incentives, the law "transform[s] the officials and employees of the BIR and the BOC into mercenaries and bounty hunters" as they will do their best only in consideration of such rewards. Thus, the system of rewards and incentives invites corruption and undermines the constitutionally mandated duty of these officials and employees to serve the people with utmost responsibility, integrity, loyalty and efficiency. Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis for classification or distinction as to why such a system should not apply to officials and employees of all other government agencies. In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials may be dismissed from the service if their revenue collections fall short of the target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to the President without sufficient standards. It will therefore be easy for the President to fix an unrealistic and unattainable target in order to dismiss BIR or BOC personnel. Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon the enactment and approval of the law, the creation of the congressional oversight committee permits legislative participation in the implementation and enforcement of the law. In their comment, respondents, through the Office of the Solicitor General, question the petition for being premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim that will necessitate the exercise of this Courts jurisdiction. Nev ertheless, respondents acknowledge that public policy requires the resolution of the constitutional issues involved in this case. They assert that the allegation that the reward system will breed mercenaries is mere speculation and does not suffice to invalidate the law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies the BIR and the BOC because the functions they perform are distinct from those of the other government agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the executive in the implementation of its provisions. Lastly, the creation of the congressional oversight committee under the law enhances, rather than violates, separation of powers. It ensures the fulfillment of the legislative policy and serves as a check to any over-accumulation of power on the part of the executive and the implementing agencies.

After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have failed to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter be discussed. Actual Case And Ripeness An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is, the question must be ripe for adjudication. And a constitutional question is ripe for adjudication when the governmental act being challenged has a direct adverse effect on the individual challenging it. 11 Thus, to be ripe for judicial adjudication, the petitioner must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision of the Court. 12 In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere enactment of the law even without any further overt act,13 petitioners fail either to assert any specific and concrete legal claim or to demonstrate any direct adverse effect of the law on them. They are unable to show a personal stake in the outcome of this case or an injury to themselves. On this account, their petition is procedurally infirm. This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of constitutionality in favor of the law. And where an action of the legislative branch is alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. 14 Accountability of Public Officers Section 1, Article 11 of the Constitution states: Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice, and lead modest lives. Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to the needs of the people they are called upon to serve. Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by providing a system of rewards and sanctions for the purpose of encouraging the officials and employees of the BIR and the BOC to exceed their revenue targets and optimize their revenue-generation capability and collection.15 The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere conjecture or denied in advance (as petitioners would have the Court do) specially in this case where it is an underlying principle to advance a declared public policy. Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely speculative. A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one.16 To invalidate RA 9335 based on petitioners baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which approved it. Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional performance. A system of incentives for exceeding the set expectations of a public office is not anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public service of deserving government personnel. In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the customs as well as other parties an amount not exceeding onehalf of the net proceeds of forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court said: The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in detecting fraudulent attempts to evade payment of duties and taxes. In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if it will be either the fruit of "bounty hunting or mercenary activity" or the product of the irregular performance of official duties. One of these precautionary measures is embodied in Section 8 of the law: SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their duties shall be held liable for any loss or injury suffered by any business establishment or taxpayer as a result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence. Equal Protection Equality guaranteed under the equal protection clause is equality under the same conditions and among persons similarly situated; it is equality among equals, not similarity of treatment of persons who are classified based on substantial differences in relation to the object to be accomplished.19 When things or persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v. Elizalde Rope Workers Union,20 this Court declared:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary . In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the classification be based on scientific or marked differences of things or in their relation. Neither is it necessary that the classification be made with mathematical nicety. Hence, legislative classification may in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear.21 (emphasis supplied) The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary. 22 With respect to RA 9335, its expressed public policy is the optimization of the revenue-generation capability and collection of the BIR and the BOC. 23 Since the subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the common distinct primary function of generating revenues for the national government through the collection of taxes, customs duties, fees and charges. The BIR performs the following functions: Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which shall be headed by and subject to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by the President upon the recommendation of the Secretary [of the DOF], shall have the following functions: (1) Assess and collect all taxes, fees and charges and account for all revenues collected; (2) Exercise duly delegated police powers for the proper performance of its functions and duties; (3) Prevent and prosecute tax evasions and all other illegal economic activities; (4) Exercise supervision and control over its constituent and subordinate units; and (5) Perform such other functions as may be provided by law.24 xxx On the other hand, the BOC has the following functions: Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject to the management and control of the Commissioner of Customs, who shall be appointed by the President upon the recommendation of the Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have the following functions: (1) Collect custom duties, taxes and the corresponding fees, charges and penalties; (2) Account for all customs revenues collected; (3) Exercise police authority for the enforcement of tariff and customs laws; (4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry; (5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports of entry; (6) Administer all legal requirements that are appropriate; (7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction; (8) Exercise supervision and control over its constituent units; xxx xxx (emphasis supplied)

(9) Perform such other functions as may be provided by law.25 xxx xxx xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the instrumentalities through which the State exercises one of its great inherent functions taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection. Undue Delegation Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out or implemented by the delegate. 26 It lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegates authority and prevent the delegation from running riot. 27 To be sufficient, the standard must specify the limits of the delegates authority, announce the legislative policy and identify the conditions under which it is to be implemented. 28 RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the law: SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of rewards and sanctions through the creation of a Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the purpose of encouraging their officials and employees to exceed their revenue targets. Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the President to fix revenue targets: SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter referred to as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in excess of their respective revenue targets of the year, as determined by the Development Budget and Coordinating Committee (DBCC), in the following percentages: Excess of Collection of the Excess the Revenue Targets 30% or below More than 30% Percent (%) of the Excess Collection to Accrue to the Fund 15% 15% of the first 30% plus 20% of the remaining excess

The Fund shall be deemed automatically appropriated the year immediately following the year when the revenue collection target was exceeded and shall be released on the same fiscal year. Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by the President to Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies revenue targets as allocated among its revenue districts in the case of the BIR, and the collection districts in the case of the BOC. xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to Congress. 30 Thus, the determination of revenue targets does not rest solely on the President as it also undergoes the scrutiny of the DBCC. On the other hand, Section 7 specifies the limits of the Boards authority and identifies the conditions under which official s and employees whose revenue collection falls short of the target by at least 7.5% may be removed from the service: SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the following powers and functions: xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees whose revenue collection falls short of the target by at least seven and a half percent (7.5%), with due consideration of all relevant factors affecting the level of collection as provided in the rules and regulations promulgated under this Act, subject to civil service laws, rules and regulations and compliance with substantive and procedural due process : Provided, That the following exemptions shall apply: 1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as has no historical record of collection performance that can be used as basis for evaluation; and 2. Where the revenue or customs official or employee is a recent transferee in the middle of the period under consideration unless the transfer was due to nonperformance of revenue targets or potential nonperformance of revenue targets: Provided, however, That when the district or area of responsibility covered by revenue or customs officials or employees has suffered from economic difficulties brought about by natural calamities or force majeure or economic causes as may be determined by the Board, termination shall be considered only after careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That such decision shall be immediately executory: Provided, further, That the application of the criteria for the separation of an official or employee from service under this Act shall be without prejudice to the application of other relevant laws on accountability of public officers and employees, such as the Code of Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act; xxx xxx xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from the service for causes other than those provided by law and only after due process is accorded the employee.31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue collection falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting the level of collection. This standard is analogous to inefficiency and incompetence in the performance of official duties, a ground for disciplinary action under civil service laws.32 The action for removal is also subject to civil service laws, rules and regulations and compliance with substantive and procedural due process. At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and equity," "public convenience and welfare" and "simplicity, economy and welfare."33 In this case, the declared policy of optimization of the revenue-generation capability and collection of the BIR and the BOC is infused with public interest. Separation Of Powers Section 12 of RA 9335 provides: SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint Congressional Oversight Committee composed of seven Members from the Senate and seven Members from the House of Representatives. The Members from the Senate shall be appointed by the Senate President, with at least two senators representing the minority. The Members from the House of Representatives shall be appointed by the Speaker with at least two members representing the minority. After the Oversight Committee will have approved the implementing rules and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist. The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the law may be considered moot and academic. This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter). The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional oversight in Macalintal v. Commission on Elections34 is illuminating: Concept and bases of congressional oversight Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity with the congressional perception of public interest. The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inherent in a democratic system of government. x x x x x x x x x Over the years, Congress has invoked its oversight power with increased frequency to check the perceived "exponential accumulation of power" by the executive branch. By the beginning of the 20th century, Congress has delegated an enormous amount of legislative authority to the executive branch and the administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative agencies perform their functions within the authority delegated to them. x x x x x x x x x Categories of congressional oversight functions The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories, namely: scrutiny, investigation and supervision. a. Scrutiny Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its primary purpose is to determine economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny, Congress may request information and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency involved. xxx b. Congressional investigation xxx xxx

While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional investigation involves a more intense digging of facts. The power of Congress to conduct investigation is recognized by the 1987 Constitution under section 21, Article VI, xxx xxx xxx c. Legislative supervision The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional committee regarding executive operations in a given administrative area. While both congressional scrutiny and investigation involve inquiry into past executive branch actions in order to influence future executive branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that delegated authority. Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an agency to present the proposed regulations to Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress affirmatively approves it. Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative and the executive branches of government as it offers lawmakers a way to delegate vast power to the executive branch or to independent agencies while retaining the option to cancel particular exercise of such power without having to pass new legislation or to repeal existing law. They contend that this arrangement promotes democratic accountability as it provides legislative check on the activities of unelected administrative agencies. One proponent thus explains: It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and practice. It suffices to say that the complexities of modern government have often led Congress-whether by actual or perceived necessity- to legislate by declaring broad policy goals and general statutory standards, leaving the choice of policy options to the discretion of an executive officer. Congress articulates legislative aims, but leaves their implementation to the judgment of parties who may or may not have participated in or agreed with the development of those aims. Consequently, absent safeguards, in many instances the reverse of our constitutional scheme could be effected: Congress proposes, the Executive disposes. One safeguard, of course, is the legislative power to enact new legislation or to change existing law. But without some means of overseeing post enactment activities of the executive branch, Congress would be unable to determine whether its policies have been implemented in accordance with legislative intent and thus whether legislative intervention is appropriate. Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives. They urge that any post-enactment measures undertaken by the legislative branch should be limited to scrutiny and investigation; any measure beyond that would undermine the separation of powers guaranteed by the Constitution. They contend that legislative veto constitutes an impermissible evasion of the Presidents veto authority and intrusion into the powers vested in the executive or judicial branches of government. Proponents counter that legislative veto enhances separation of powers as it prevents the executive branch and independent agencies from accumulating too much power. They submit that reporting requirements and congressional committee investigations allow Congress to scrutinize only the exercise of delegated law-making authority. They do not allow Congress to review executive proposals before they take effect and they do not afford the opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative veto permits Congress to participate prospectively in the approval or disapproval of " subordinate law" or those enacted by the executive branch pursuant to a delegation of authority by Congress. They further argue that legislative veto "is a necessary response by Congress to the accretion of policy control by forces outside its chambers." In an era of delegated authority, they point out that legislative veto "is the most efficient means Congress has yet devised to retain control over the evolution and implementation of its policy as declared by statute." In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of legislative veto provisions . The case arose from the order of the immigration judge suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States House of Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the decision of the executive branch to allow a particular deportable alien to remain in the United States. The immigration judge reopened the deportation proceedings to implement the House order and the alien was ordered deported. The Board of Immigration Appeals dismissed the aliens appeal, holding that it had no power to declare unconstitutional an act of Congress. The United States Court of Appeals for Ninth Circuit held that the House was without constitutional authority to order the aliens deportation and that 244(c)(2) violated the constitutional doctrine on separation of powers. On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the issue of separation of powers and instead held that the provision violates the presentment clause and bicameralism. It held that the one-house veto was essentially legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of the Constitution requiring the passage by a majority of both Houses and presentment to the President. x x x x x x x x x Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal Trade Commission Improvement Act of 1980. Following this precedence, lower courts invalidated statutes containing legislative veto provisions although some of these provisions required the approval of both Houses of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions were not even exercised. 35 (emphasis supplied) In Macalintal, given the concept and configuration of the power of congressional oversight and considering the nature and powers of a constitutional body like the Commission on Elections, the Court struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only to monitor and evaluate the implementation of the said law but also to review, revise, amend and approve the IRR promulgated by the Commission on Elections. The Court held that these functions infringed on the constitutional independence of the Commission on Elections. 36 With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither necessarily constitutes an encroachment on the executive power to implement laws nor undermines the constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a democratic system of government. It may in fact even enhance the separation of powers as it prevents the over-accumulation of power in the executive branch. However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution imposes two basic and related constraints on Congress.37 It may not vest itself, any of its committees or its members with either executive or judicial power.38 And, when it exercises its legislative power, it must

follow the "single, finely wrought and exhaustively considered, procedures" specified under the Constitution,39 including the procedure for enactment of laws and presentment. Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following: (1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation40 and (2) investigation and monitoring41 of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation. 42 Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this class. Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect. As such, a legislative veto in the form of a congressional oversight committee is in the form of an inward-turning delegation designed to attach a congressional leash (other than through scrutiny and investigation) to an agency to which Congress has by law initially delegated broad powers.43 It radically changes the design or structure of the Constitutions diagram of power as it entrusts to Con gress a direct role in enforcing, applying or implementing its own laws.44 Congress has two options when enacting legislation to define national policy within the broad horizons of its legislative competence.45 It can itself formulate the details or it can assign to the executive branch the responsibility for making necessary managerial decisions in conformity with those standards. 46 In the latter case, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature.47 Thus, what is left for the executive branch or the concerned administrative agency when it formulates rules and regulations implementing the law is to fill up details (supplementary rule-making) or ascertain facts necessary to bring the law into actual operation (contingent rule-making).48 Administrative regulations enacted by administrative agencies to implement and interpret the law which they are entrusted to enforce have the force of law and are entitled to respect.49 Such rules and regulations partake of the nature of a statute50 and are just as binding as if they have been written in the statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality and legality until they are set aside with finality in an appropriate case by a competent court.51 Congress, in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting them to its stamp of approval without disturbing the calculated balance of powers established by the Constitution. In exercising discretion to approve or disapprove the IRR based on a determination of whether or not they conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power exclusively vested in this Court by the Constitution. Considered Opinion of Mr. Justice Dante O. Tinga Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule on presentment. 52 Section 1, Article VI of the Constitution states: Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. (emphasis supplied) Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested in Congress which consists of two chambers, the Senate and the House of Representatives. A valid exercise of legislative power requires the act of both chambers. Corrollarily, it can be exercised neither solely by one of the two chambers nor by a committee of either or both chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative veto and a congressional committee legislative veto are invalid. Additionally, Section 27(1), Article VI of the Constitution provides: Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it, otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis supplied) Every bill passed by Congress must be presented to the President for approval or veto. In the absence of presentment to the President, no bill passed by Congress can become a law. In this sense, law-making under the Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto is a valid legislative act with the force of law, it cannot take effect without such presentment even if approved by both chambers of Congress. In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of Congress. 54 Second, it must be presented to and approved by the President.55 As summarized by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills: A bill is introduced by any member of the House of Representatives or the Senate except for some measures that must originate only in the former chamber.

The first reading involves only a reading of the number and title of the measure and its referral by the Senate President or the Speaker to the proper committee for study. The bill may be "killed" in the committee or it may be recommended for approval, with or without amendments, sometimes after public hearings are first held thereon. If there are other bills of the same nature or purpose, they may all be consolidated into one bill under common authorship or as a committee bill. Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its entirety, scrutinized, debated upon and amended when desired. The second reading is the most important stage in the passage of a bill. The bill as approved on second reading is printed in its final form and copies thereof are distributed at least three days before the third reading. On the third reading, the members merely register their votes and explain them if they are allowed by the rules. No further debate is allowed. Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three readings. If there are differences between the versions approved by the two chambers, a conference committee58 representing both Houses will draft a compromise measure that if ratified by the Senate and the House of Representatives will then be submitted to the President for his consideration. The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the signatures of the Senate President, the Speaker, and the Secretaries of their respective chambers59 The Presidents role in law-making. The final step is submission to the President for approval. Once approved, it takes effect as law after the required publication.60 Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient standards established in the said law, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of the legislature when it becomes effective because it is only upon effectivity of the statute that legal rights and obligations become available to those entitled by the language of the statute. Subject to the indispensable requisite of publication under the due process clause, 61 the determination as to when a law takes effect is wholly the prerogative of Congress.62 As such, it is only upon its effectivity that a law may be executed and the executive branch acquires the duties and powers to execute the said law. Before that point, the role of the executive branch, particularly of the President, is limited to approving or vetoing the law.63 From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the implementing rules of a law after it has already taken effect shall be unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling made by the members of the executive branch charged with the implementation of the law. Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be similar provisions of other laws that may be invalidated for failure to pass this standard, the Court refrains from invalidating them wholesale but will do so at the proper time when an appropriate case assailing those provisions is brought before us.64 The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the other provisions of the law? Will it render the entire law unconstitutional? No. Section 13 of RA 9335 provides: SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent court, the remainder of this Act or any provision not affected by such declaration of invalidity shall remain in force and effect. In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules: The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a separability clause in a statute creates the presumption that the legislature intended separability, rather than complete nullity of the statute. To justify this result, the valid portion must be so far independent of the invalid portion that it is fair to presume that the legislature would have enacted it by itself if it had supposed that it could not constitutionally enact the other. Enough must remain to make a complete, intelligible and valid statute, which carries out the legislative intent. x x x The exception to the general rule is that when the parts of a statute are so mutually dependent and connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, the nullity of one part will vitiate the rest. In making the parts of the statute dependent, conditional, or connected with one another, the legislature intended the statute to be carried out as a whole and would not have enacted it if one part is void, in which case if some parts are unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with them. The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid provision from the other provisions so that the latter may continue in force and effect. The valid portions can stand independently of the invalid section. Without Section 12, the remaining provisions still constitute a complete, intelligible and valid law which carries out the legislative intent to optimize the revenue-generation capability and collection of the BIR and the BOC by providing for a system of rewards and sanctions through the Rewards and Incentives Fund and a Revenue Performance Evaluation Board.

To be effective, administrative rules and regulations must be published in full if their purpose is to enforce or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30, 2006 in two newspapers of general circulation 66 and became effective 15 days thereafter.67 Until and unless the contrary is shown, the IRR are presumed valid and effective even without the approval of the Joint Congressional Oversight Committee. WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional Oversight Committee to approve the implementing rules and regulations of the law is declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in force and effect. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 133132 February 15, 2001

ALEXIS C. CANONIZADO, EDGAR DULA TORRES and ROGELIO A. PUREZA, petitioners, vs. HON. ALEXANDER P. AGUIRRE, as Executive Secretary, HON. EMILIA T. BONCODIN as Secretary of Budget and Management, JOSE PERCIVAL L. ADIONG, ROMEO L. CAIRME and VIRGINIA U. CRISTOBAL, respondents. RESOLUTION GONZAGA-REYES, J.: Respondents are seeking a reconsideration of the Courts 25 January 2000 decision, wherein we declared section 8 of Republic Act No. 8551 (RA 8551) to be violative of petitioners constitutionally mandated right to security of tenure. As a consequence of our ruling, we held that petitioners removal as Commissioners of the National Police Commission (NAPOLCOM) and the appointment of new Commissioners in their stead were nullities and ordered the reinstatement of petitioners and the payment of full backwages to be computed from the date they were removed from office. 1 Some of the errors assigned by the Solicitor General, acting in behalf of respondents, in the motion for reconsideration have been more than adequately discussed and disposed of by this Court and hence, do not merit further attention. Respondents insist that the Court should take judicial notice of then President Estradas appointment of Alexis C. Canonizado to the position of Inspector General of the Internal Affairs Service (IAS) of the Philippine National Police (PNP) on 30 June 1998, and of Canonizados acceptance and of his having qualified for such position by taking his oath on 2 July 1998 before then Department of Interior and Local Government Undersecretary Ronaldo Puno and again, on 7 July 1998, this time before the President, since these partake of official acts of the Executive Department, which are matters of mandatory judicial no tice, pursuant to section 1 of Rule 129 of the Rules of Court. 2 By accepting such position, respondents contend that Canonizado is deemed to have abandoned his claim for reinstatement to the NAPOLCOM since the offices of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible. Although petitioners do not deny the appointment of Canonizado as Inspector General, they m aintain that Canonizados initiation and tenacious pursuance of the present case would belie any intention to abandon his former office. Petitioners assert that Canonizado should not be faulted for seeking gainful employment during the pendency of this case. Furthermore, petitioners point out that from the time Canonizado assumed office as Inspector General he never received the salary pertaining to such position, annexing to their comment a certification issued by the Finance Service Office of the PNP stating this fact. 3 Abandonment of an office is the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. 4 In order to constitute abandonment of office, it must be total and under such circumstances as clearly to indicate an absolute relinquishment. 5 There must be a complete abandonment of duties of such continuance that the law will infer a relinquishment. 6 Abandonment of duties is a voluntary act; 7 it springs from and is accompanied by deliberation and freedom of choice. 8 There are, therefore, two essential elements of abandonment: first, an intention to abandon and second, an overt or external act by which the intention is carried into effect. 9 Generally speaking, a person holding a public office may abandon such office by nonuser or acquiescence. 10 Non-user refers to a neglect to use a right or privilege or to exercise an office. 11 However, nonperformance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform. 12 Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of the office. 13 Where, while desiring and intending to hold the office, and with no willful desire or intention to abandon it, the public officer vacates it in deference to the requirements of a statute which is afterwards declared unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover the office. 14 By accepting the position of Inspector General during the pendency of the present case - brought precisely to assail the constitutionality of his removal from the NAPOLCOM - Canonizado cannot be deemed to have abandoned his claim for reinstatement to the latter position. First of all, Canonizado did not voluntarily leave his post as Commissioner, but was compelled to do so on the strength of section 8 of RA 8551, which provides Upon the effectivity of this Act, the terms of office of the current Commissioners are deemed expired which shall constitute a bar to their reappointment or an extension of their terms in the Commission except for current Commissioners who have served less than two (2) years of their terms of office who may be appointed by the President for a maximum terms of two (2) years. In our decision of 25 January 2000, we struck down the abovequoted provision for being violative of petitioners constitutionally guaranteed right to sec urity of tenure. Thus, Canonizado harbored no willful desire or intention to abandon his official duties. In fact, Canonizado, together with petitioners Edgar Dula Torres and Rogelio A. Pureza, lost no time disputing what they perceived to be an illegal removal; a few weeks after RA 8551 took effect on 6 March 1998, petitioners instituted the current action on 15 April 1998, assailing the constitutionality of certain provisions of said law. The removal of petitioners from their positions by virtue of a constitutionally infirm act necessarily negates a finding of voluntary relinquishment. 1wphi1.nt The next issue is whether Canonizados appointment to and acceptance of the position of Inspector General should result in an abandonment of his claim for reinstatement to the NAPOLCOM. It is a well settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding. 15 Public policy considerations dictate against allowing the same individual to perform inconsistent and incompatible duties. 16 The incompatibility contemplated is not the mere physical impossibility of one persons performing the duties of the two offices due to a lack of time or the inability to be in two places at the same moment, but that which proceeds from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the other. 17

There is no question that the positions of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible with each other. As pointed out by respondents, RA 8551 prohibits any personnel of the IAS from sitting in a committee charged with the task of deliberating on the appointment, promotion, or assignment of any PNP personnel, 18 whereas the NAPOLCOM has the power of control and supervision over the PNP. 19 However, the rule on incompatibility of duties will not apply to the case at bar because at no point did Canonizado discharge the functions of the two offices simultaneously. Canonizado was forced out of his first office by the enactment of section 8 of RA 8551. Thus, when Canonizado was appointed as Inspector General on 30 June 1998, he had ceased to discharge his official functions as NAPOLCOM Commissioner. As a matter of fact, it was on this same date that Leo S. Magahum and Cleofe M. Factoran were appointed as NAPOLCOM Commissioners by then President Estrada, to join Romeo L. Cairme and Jose Percival L. Adiong - who were earlier appointed and given a term extension, respectively, by then President Ramos - thereby completing the appointments of the four regular members of the NAPOLCOM, pursuant to section 4 20 of the amendatory law. Thus, to reiterate, the incompatibility of duties rule never had a chance to come into play for petitioner never occupied the two positions, of Commissioner and Inspector General, nor discharged their respective functions, concurrently. At this juncture, two cases should be mentioned for their factual circumstances almost nearly coincide with that of petitioners. The first is Tan v. Gimenez 21 wherein petitioner Francisco Tan, a public school teacher, was required to resign by the Commissioner of Civil Service for gross misconduct. Tan appealed to the Civil Service Board of Appeals, which reversed the decision of the Commissioner and acquitted him of the charge. During the pendency of Tans appeal, he worked as a clerk in the Office of the Provincial Treasurer of Leyte. The Court held that accepting this second position did not constitute abandonment of his former position because [h]e was ordered to resign from the service with prejudice to reinstatement pursuant to the decision of the Commissioner of Civil Service and by virtue thereof was prevented from exercising the functions of his position and receiving the corresponding compensation therefor. While thus deprived of his office and emoluments thereunto appertaining the petitioner had to find means to support himself and his family. The fact that during the time his appeal was pending and was thus deprived of his office and salary, he sought and found employment in another branch of the government does not constitute abandonment of his former position. To deny him the right to collect his back salaries during such period would be tantamount to punishing him after his exoneration from the charge which caused his dismissal from the service. x x x Very similar to Tan is the case of Gonzales v. Hernandez. 22 In this 1961 case, petitioner Guillermo Gonzales sought reinstatement to his former position as attorneygeneral of the Investigation and Secret Service Division of the Department of Finance. As in Tan, Gonzales was compelled to resign from office by the Commissioner of Civil Service, who found him guilty of disreputable conduct. During the pendency of his appeal with the Civil Service Board of Appeals, petitioner applied for and accepted employment as an emergency helper in the Government Service Insuranc e System. The Board of Appeals eventually modified the Commissioners finding by lowering the penalty from removal from office to suspension of two months without pay. In response to the question of whether Gonzales was deemed to have abandoned his position by accepting another position in the GSIS, the Court held that Plaintiffs position in the GSIS was temporary in nature, during the period of an emergency only. He had the right to live du ring the pendency of his appeal and naturally the right to accept any form of employment. In any case as the court below found, this temporary employment is not incompatible with his old position; he could resign this temporary position any time as soon as his case has been definitely decided in his favor. xxx Although the Court found that the second position accepted by Gonzales was only temporary in nature, the rule on incompatibility of duties makes no such distinction between a permanent or temporary second office. Moreover, the Court still invoked the rationale previously cited in Tan - that petitioners right to live justified his acceptance of other employment during the pendency of his appeal. The Court held that Gonzaless second position was not incompatible with the first since he could resign from the second position when the case is finally decided in his favor and before he re-assumes his previous office. As in the Tan and Gonzales cases, Canonizado was compelled to leave his position as Commissioner, not by an erroneous decision, but by an unconstitutional provision of law. Canonizado, like the petitioners in the above mentioned cases, held a second office during the period that his appeal was pending. As stated in the Comment filed by petitioners, Canonizado was impelled to accept this subsequent position by a desire to continue serving the country, in whatever capacity. 23 Surely, this selfless and noble aspiration deserves to be placed on at least equal footing with the worthy goal of providing for oneself and ones family, either of which are sufficient to justify Canonizados acceptance of the position of Inspector General. A contrary ruling would deprive petitioner of his right to live, which contemplates not only a right to earn a living, as held in previous cases, but also a right to lead a useful and productive life. Furthermore, prohibiting Canonizado from accepting a second position during the pendency of his petition would be to unjustly compel him to bear the consequences of an unconstitutional act which under no circumstance can be attributed to him. However, before Canonizado can re-assume his post as Commissioner, he should first resign as Inspector General of the IAS-PNP. Respondents also raise some questions regarding the execution of the Courts decision. They cite the fact that becaus e there are three petitioners who were ordered reinstated and four persons currently acting as NAPOLCOM commissioners, namely Romeo L. Cairme, Jose Percival L. Adiong, 24 Leo S. Magahum and Cleofe M. Factoran, 25 it is unclear who of the current commissioners will be replaced by petitioners. Respondents point out that the execution of the decision becomes particularly complicated when it comes to Adiong, who was a member of the NAPOLCOM under Republic Act No. 6975 (RA 6975), but was removed therefrom and subsequently re-appointed for a two-year term, pursuant to RA 8551. According to respondents, given Adiongs peculiar situation, it is unclear whether the latter should also be entitled to reinstatement as a result of the assailed decision. 26 Adiong, on his own behalf, filed a Motion for Clarification 27 with this Court contending that, if the Court should uphold the declaration of nullity of section 8 of RA 8551, then he is also entitled to reinstatement to the NAPOLCOM pursuant to his appointment under RA 6975. An unconstitutional act is not a law; it confers no rights, imposes no duties, and affords no protection. 28 Therefore, the unavoidable consequence of the Courts declaration that section 8 of RA 8551 violates the fundamental law is that all acts done pursuant to such provision shall be null and void, including the removal of petitioners and Adiong from their positions in the NAPOLCOM and the appointment of new commissioners in their stead. When a regular government employee is illegally dismissed, his position does not become vacant and the new appointment made in order to replace him is null and void ab initio. 29 Rudimentary is the precept that there can be no valid appointment to a non-vacant position. 30 Accordingly, Adiongs appointment on 11 March 1998 for a term of two years, pursuant to section 8 of RA 8551, is null and void. However, he should now be permitted to enjoy the remainder of his term under RA 6975. Therefore, based on our foregoing disquisition, there should no longer be any doubt as to the proper execution of our 25 January 2000 decision all the Commissioners appointed under RA 8551 should be removed from office, in order to give way to the reinstatement of petitioners and respondent Adiong. Respondents insist that the present case is similar to a quo warranto proceeding since petitioners prayed for the removal of the incumbent commissioners and for their reinstatement. Therefore, they claim that Magahum and Factoran should have been impleaded as respondents and given the opportunity to defend their positions. 31 We disagree. First and foremost, the petition filed before this Court sought a ruling on the constitutionality of sections 4 and 8 of RA 8551. The inevitable consequence of this Courts declaration that section 8 of said law is unconstitutional is the removal of Adiong, Cairme, Magahum and Factoran from the NAPOLCOM and the reinstatement thereto of petitioners, including Adiong, although under his original appointment under RA 6975. As discussed earlier, an unconstitutional law is not a

law at all; it is in legal contemplation, as inoperative as though it had never been passed. There being no vacancy created in the first place in the office of the NAPOLCOM, the appointments of Magahum, Factoran, Cairme and Adiong pursuant to RA 8551 are legal nullities, which cannot be the source of any rights. 32 It is noted that Magahum and Factoran were appointed after more than two months from the time the present petition was filed with the Court, which explains why they were originally not impleaded. Had they been interested in defending the validity of their appointments, Magahum and Factoran could have filed a motion to intervene with this Court. It is highly improbable that they were not aware of the present petition since their colleagues, Cairme and Adiong, were respondents therein. The fact that they did not intervene could only mean that they were willing to be bound by the Courts decision in this case. In addit ion, it is noted that respondents did not raise this issue when they filed their comment to the petition on 21 September 1998, even though at that time both Magahum and Factoran were already appointed, albeit invalidly, to the NAPOLCOM. Only after the promulgation of our 25 January 2000 decision did respondents belatedly insist that Magahum and Factoran should be made parties to this case. It is not for a party to participate in the proceedings, submit his case for decision and accept the judgment if it is favorable to him but attack it for any reason when it is adverse. 33 In the event that the Court should affirm its decision, respondents pray that the Court apply the ruling in Mayor v. Macaraig 34 which provided that In G.R. No. 91547, and G.R. No. 91730, the removal of petitioners Rosario G. Encarnacion, Daniel M. Lucas, Jr., Ceferino E. Dulay, and Conrado Maglaya as Commissioners of the NLRC is ruled unconstitutional and void; however, to avoid displacement of any of the incumbent Commissioners now serving, it not appearing that any of them is unfit or has given cause for removal, and conformably to the alternative prayer of the petitioners themselves, it is ORDERED that said petitioners be paid all salaries, benefits and emoluments accruing to them for the unexpired portions of their six-year terms and allowed to enjoy retirement benefits under applicable laws, pursuant to RA No. 910 and this Courts Resolution in Ortiz v. Commission on Elections, G.R. No. 79857, 161 SCRA 812; xxx We cannot grant respondents prayer for the application of the abovequoted dispositive po rtion of Mayor in G.R. No. 91547 and G.R. No. 91730 to the case at bar based on one crucial point of distinction unlike in Mayor, petitioners herein did not make any alternative prayer for the payment of the salaries, benefits, and emoluments accruing to them for the unexpired portions of their terms in lieu of reinstatement. Contrary to respondents contention, the general prayer of petitioners for such other reliefs just and equitable cannot be deemed as an alternative to their specific prayer for reinstatement. We agree with petitioners view that any remedy necessarily included in this general phrase should be consistent with the specific prayers of petitioners. 1wphi1.nt Finally, respondents contend that the re-appointment of petitioners under RA 6975 violates section 16 35 of such law. 36 Once again, respondents did not raise this issue in their comment to the petition, and are therefore estopped from doing so at this late stage. Moreover, the validity of the appointments under RA 6975 was never the issue in this case and accordingly, the Court will not pass upon the same. WHEREFORE, respondents motion for reconsideration is hereby DENIED. However, it is hereby clarified that our 25 January 2000 decision mandates the reinstatement of Jose Percival L. Adiong to the NAPOLCOM, together with petitioners herein, pursuant to his appointment under RA 6975. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 144153 January 16, 2002

MA. CHONA M. DIMAYUGA, petitioner, vs. MARIANO E. BENEDICTO II, TOLL REGULATORY BOARD, GREGORIO R. VIGILAR, and RONALDO B. ZAMORA, respondents. DE LEON, JR., J.: Before us is a petition for review on certiorari seeking the reversal of the Decision 1 dated July 25, 2000 rendered by the former Seventeenth Division of the Court of Appeals in CA-G.R. SP No. 54733 dismissing the quo warranto suit filed by petitioner. The facts are: On October 26, 1992, then Secretary of Public Works and Highways Jose P. de Jesus issued a permanent appointment in favor of petitioner Chona M. Dimayuga as Executive Director II of the Toll Regulatory Board ("Board"). 2 As its highest-ranking working official, petitioner exercised powers of control and supervision over the Board's three (3) division, namely its Finance and Administrative Division, the Technical Division and the Engineering Division. She also oversaw the Board's buildoperate-and-transfer ("BOT") projects, such as the Metro Manila Skyway Project and the Manila-Cavite Tollway Project, and likewise participated in the negotiations for the Manila-Subic Expressway Project and the South Luzon Tollway Extension Project. At the time, the position of Executive Director II was not deemed part of the career executive service, that is, until June 4, 1993, when it was included therein. On May 31, 1994, the Civil Service Commission issued Memorandum Circular No. 21.3 Section 4 of the Memorandum states: xxx xxx xxx

4. Status of Appointment of Incumbents of Positions Included Under the Coverage of the CES. Incumbents of positions which are declared to be Career Executive Service positions for the first time pursuant to this Resolution who hold permanent appointment thereto shall remain under permanent status in their respective positions. However, upon promotion or transfer to other Career Executive Service (CES) positions, these incumbents shall be under temporary status in said positions until they qualify. xxx xxx xxx

Petitioner alleges that during her tenure, she became the subject of several administrative and criminal complaints designed to coerce her removal. On the strength of these complaints, respondent former Department of Public Works and Highways ("DPWH") Secretary Gregorio R. Vigilar issued a first ninety-day suspension order4 against petitioner on November 28, 1997. Upon the expiration of the first suspension, a second ninety-day suspension order5 dated March 26, 1998 was issued against petitioner, this time by then Executive Secretary Alexander Aguirre. 6 On the expiration of the second suspension order, petitioner re-assumed her duties on June 25, 1998. However, respondent Vigilar issued on the following day Department Order No. 85, series of 1998,7 by virtue of which petitioner was "temporarily detailed" at the Office of the Secretary of the DPWH. Concurrently, he addressed a Memorandum8 dated June 26, 1998 to petitioner directing her to report to the Legal Service of the Department "to assist in the evaluation of appealed cases and preparation of corresponding decisions thereon involving the implementation of P.D. No. 1096, otherwise known as the National Building Code of the Philippines," and other cases that may be assigned to her. As a gesture of protest, petitioner filed a leave of absence until September 30, 1998 rather than assume a position which she considered a demotion. In the meantime, responding to a letter dated December 1, 19989 from petitioner requesting a clarification on her status, the Career Executive Service Board ("CESB") replied in a letter dated December 15, 1998,10 to wit: xxx xxx xxx

It has always been the stand of the CES Board, even before the issuance of MC 21 by the CSC, to respect or honor the appointment status of an official appointed to a position which is subsequently included in the CES, such that if the appointment was of a permanent status or nature, the inclusion of the position in the CES is not deemed to have changed the status of the appointee to the position. xxx On September 28, 1998, while she was on leave, petitioner received a letter dated September 22, 1998 from respondent Vigilar informing her that then President Joseph E. Estrada had appointed respondent Mariano E. Benedicto II in her stead as Executive Director II of the Board. The letter cited a Memorandum dated June 30, 199811 issued by then Executive Secretary Ronaldo B. Zamora addressed to all heads of departments, agencies, and offices, as follows: 1. Pursuant to existing laws and jurisprudence, non-career officials/personnel or those occupying political positions are deemed co-terminous with the outgoing Administration. 2. Accordingly, they shall vacate their positions effective 01 July 1998 and turnover their offices to the highest ranking career officials, unless otherwise specifically retained by the Department Heads concerned or extended new appointments by the President.

xxx

xxx

xxx

Since she had been effectively removed from her position, petitioner filed on September 6, 1999 a petition for quo warranto before the Court of Appeals, docketed as CA-G.R. SP No. 54733. On July 25, 2000, the appellate court rendered the assailed decision dismissing petitioner's suit. The appellate court held that: xxx xxx xxx

In the case at bar, petitioner was appointed in a permanent capacity to the position of Executive Director II of the TRB in 1992. At that time, said position was excluded from the coverage of the CES, so petitioner was able to occupy said position although she was not a career service executive officer (CESO). The subsequent inclusion of her position under the CES, however, did not automatically qualify her for the said position as she lacked the required eligibility. At most, the permanent status accorded to her appointment would only allow her to occupy said position until the appointing authority would replace her with someone who has the required eligibility therefor. The CSC, in issuing MC 21, could not have intended to unwittingly permit non-career service officers to hold on defiantly and in a permanent character to career service positions by virtue of their permanent appointments. Such a preposterous interpretation characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications; (2) security of tenure; and (3) opportunity for advancement to higher career positions. Moreover, such an unthinkable interpretation would lead to an absurd situation wherein an incumbent could hold on to his post adamantly for as long as he wants by reason of his permanent appointment, and even without qualifying for said position. xxx xxx xxx

Secondly, petitioner may not claim any proprietary right to her post as Executive Director II of the TRB because this would encroach upon the executive powers of the President. Such obstinate refusal by petitioner to vacate said position run counter to the wide latitude given to the appointing authority or to the President, in this matter, in exercising his power of appointment in accordance with the provisions of the Constitution. Moreover, if We were to espouse petitioner's depthless construction of Section 4 of MC 21, unqualified government employees would arrogate to themselves the right to decide to stay permanently in their respective posts. This would leave the appointing authority helpless in exercising his power of appointment that also includes the power of removal.1wphi1.nt Thirdly, petitioner's claim to security of tenure must be rejected. This Court has repeatedly held that this guaranty is available only to permanent appointees [citation omitted]. Under the Administrative Code of 1987, a permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. Petitioner is not a CESO. Without the required eligibility for a career service position, petitioner cannot be considered a permanent appointee under the law. As stated, a permanent appointment is extended to a persons possessing the requisite qualifications, including the eligibility required, for the position, and thus protected by the constitutional guaranty of security of tenure. Since petitioner does not have the prescribed CES eligibility for the position concerned, she can be removed from office anytime because she does not have security of tenure. Likewise, she cannot complain that her removal was not "for cause provided by law." The phrase "for cause provided for law" is a guarantee of both procedural and substantive due process. This right proceeds from one's entitlement to security of tenure which herein petitioner does not have due to her ineligibility for the position concerned. As the Supreme Court held in Achacoso (infra), "[I]t is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to established jurisprudence." xxx xxx xxx

Aggrieved by the dismissal of her petition for quo warranto, petitioner comes to us via the instant petition for review on certiorari, urging the reversal of the appellate court's decision on the following grounds: I THE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE ERROR IN LAW WHEN IT HELD THAT PETITIONER HAS NO VESTED RIGHT TO THE POSITION IN QUESTION. II THE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE ERROR IN LAW WHEN IT HELD THAT PETITIONER'S REFUSAL TO VACATE HER POSITION RUNS COUNTER TO THE POWER OF APPOINTMENT AND REMOVAL OF THE PRESIDENT.

III THE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE ERROR IN LAW WHEN IT REJECTED PETITIONER'S CLAIM TO SECURITY OF TENURE. IV THE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE ERROR IN LAW WHEN IT DISMISSED THE PETITION FOR QUO WARRANTO FILED BY PETITIONER. V THE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE ERROR IN LAW WHEN IT FAILED TO AWARD PETITIONER MORAL DAMAGES, EXEMPLARY DAMAGES, ATTORNEY'S FEES AND LITIGATION EXPENSES. The statutory backbone of petitioner's arguments is Memorandum Circular No. 21 dated May 31, 1994 issued by the Civil Service Commission ("CSC"). The circular states: TO: ALL HEADS OF DEPARTMENTS, BUREAUS, AND AGENCIES OF THE NATIONAL AND LOCAL GOVERNMENT INCLUDING GOVERNMENT OWNED AND CONTROLLED CORPORATIONS AND STATE COLLEGES AND UNIVERSITIES. SUBJECT: Coverage of the Career Executive Service Pursuant to CSC Resolution No. 94-2925 dated May 31, 1994, the Commission adopts the following guidelines on the coverage of the Career Executive Service: 1. Positions Covered by the Career Executive Service. (a) The Career Executive Service includes the positions of Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director (department-wide and bureau-wide), Assistant Regional Director (department-wide and bureau-wide) and Chief of Department Service. (b) In addition to the above identified position and other positions of the same category which had been previously classified and included in the CES, all other third level positions in all branches and instrumentalities of the national government, including government-owned or controlled corporations with original charters are embraced within the Career Executive Service provided that they meet the following criteria: 1. the position is a career position; 2. the position is above division chief level; 3. the duties and responsibilities of the position require the performance of executive or managerial functions. 2. Positions Excluded from the Career Executive Service. (a) Supervisory and executive positions which have fixed terms of office as provided for in the charter of the agency or as specified by law; (b) Supervisory and executive positions in the non-career service which include the following: 1. Elective officials and their personal or confidential staff; 2. Secretaries and other officials of cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff; 3. Chairman and members of commission and boards with fixed terms of office and their personal or confidential staff; 4. Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, and, 5. Emergency and seasonal personnel. (c) Supervisory and executive positions in the national government belonging to the closed career systems which are administered by special bodies such as the Foreign Service, Philippine National Police, State Colleges and Universities unless otherwise provided in their respective charters, the Scientific Career Service and the like.

3. Position of Head Executive Assistant. The position of Head Executive Assistant, whether in departments, agencies, branches or instrumentalities of the national government, including Government-Owned or Controlled Corporations with the original charters shall not be within the coverage of the Career Executive Service. 4. Status of Appointment of Incumbents of Positions Included Under the Coverage of the CES. Incumbents of positions which are declared to be Career Executive Service positions for the first time pursuant to this Resolution who hold permanent appointments thereto shall remain under permanent status in their respective positions. However, upon promotion or transfer to other Career Executive Service (CES) positions, these incumbents shall be under temporary status in said other CES positions until they qualify. (italics supplied) 5. Exemption from the Coverage in the Career Executive Service of Agencies. An agency may request the Commission that a position be declared a nonCES position if the head of the agency believes that said positions does not properly belong in the Career Executive Service. A request for exemption should be filed with the Career Executive Service Office of the Civil Service commission accompanied by appropriate justifications. Upon receipt of such request, the Commission shall issue a decision on the matter within a reasonable time. 6. Positions in Local Government Units. Third level positions in local government units (municipal corporations) or similar entities including those devolved from the National Government are, for the meantime, excluded from the coverage of the Career Executive Service. This Memorandum Circular takes effect immediately. Section 4 of CSC Memorandum Circular No. 21 upon which petitioner relies makes particular reference to incumbents of positions "which are declared to be part of the Career Executive Service for the first time pursuant to this resolution who hold permanent appointments thereto." The position which petitioner held, however, was classified as part of the career executive service a year earlier, on June 4, 1993, the legal basis therefor being Presidential Decree No. 1 dated September 24, 1972, 12 adopting the Integrated Reorganization Plan as part of the law of the land. Upon closer scrutiny, section 4 appears to contradict the principle which we laid down in Achacoso v. Macaraig,13 three (3) years prior to the issuance of the circular, to wit: It is settled that a permanent appointment can be issued only "to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed." Achacoso did not. At best, therefore, his appointment could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to established jurisprudence. xxx xxx xxx

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated. It is useful to note that Achacoso served as the jurisprudential basis in recent cases involving issue of security of tenure in career executive service positions. In the doctrinal case of Cuevas v. Bacal,14 the object of controversy was the title of Chief Public Attorney in the Public Attorney's Office, which requires a CES Rank Level 1. The claimant, respondent Atty. Josefina Bacal, who possessed a CESO III rank, was appointed as such in February 1998 by then President Fidel V. Ramos. In July 1998, she was "transferred" and appointed Regional Director. Designated in her stead by former President Joseph E. Estrada as "Chief Public Defender" was Atty. Carina J. Demaisip. As Demaisip was not a CES eligible, Bacal filed a quo warranto suit before the Court of Appeals questioning the former's appointment. The Court of Appeals rendered judgment in Bacal's favor which, however, we reversed.1wphi1.nt In that case of Bacal this Court emphasized two (2) salient points, to wit: First, in order to qualify an appointment as permanent, the appointee must possess the rank appropriate to the position. Failure in this respect will render the appointment merely temporary. In Atty. Bacal's case, it was ruled that she did not acquire tenure since she had only a CESO III rank; and that she was not appointed CESO I which was the requisite eligibility for the position of Chief Public Attorney. Second, security of tenure in the career executive service ("CES") is thus acquired with respect to rank and not to position. The guaranty of security of tenure to members of the career executive service does not extend to the particular positions to which they may be appointed - a concept which is applicable only to first and second-level employees in the civil service - but to the rank to which they are appointed by the President. We reiterate those points here if only to serve as a contradistinction to petitioner's arguments. If a career executive officer's security of tenure pertains only to his rank and not to his position, with greater reason then that petitioner herein, who is not even a CESO eligible, has no security of tenure with regard to the position of Executive Director II of the Toll Regulatory Board which was earlier classified on June 4, 1993 as part of the career executive service or prior to the issuance of CSC Memorandum Circular No. 21 dated May 31, 1994. Our ruling in the fairly recent case of De Leon v. Court of Appeals15 is more appropriate and applicable to the case at bar. The private respondent therein, like herein petitioner Dimayuga, was not a career executive service officer, yet he was issued a permanent appointment as Department Legal Counsel which is a career executive service position. A dispute arose when the private respondent therein was reassigned as "Director III (Assistant Regional Director)" of Region IX. We subsequently rendered judgment in that case of De Leon finding that the therein private respondent's security of tenure was not violated. In sustaining his reassignment, we held that: The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated.

Evidently, private respondent's appointment did not attain permanency. Not having taken the necessary Career Executive Service Examination to obtain the requisite eligibility, he did not at the time of his appointment and up to the present, possess the needed eligibility for a position in the Career Executive Service. Consequently, his appointment as Ministry Legal Counsel - CESO IV/Department Legal Counsel and/or Director III, was merely temporary. Such being the case, he could be transferred or reassigned without violating the constitutionally guaranteed right to security of tenure. Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the mobility and flexibility concepts in the assignment of personnel under the Career Executive Service do not apply to him because he is not a Career Executive Service Officer. Obviously, the contention is without merit. As correctly pointed out by the Solicitor General, non-eligibles holding permanent appointments to CES positions were never meant to remain immobile in their status. Otherwise, their lack of eligibility would be a premium vesting them with permanency in the CES positions, a privilege even their eligible counterparts do not enjoy. Then too, the cases on unconsented transfer invoked by private respondent find no application in the present case. To reiterate, private respondent's appointment is merely temporary; hence, he could be transferred or reassigned to other positions without violating his right to security of tenure. In the light of the foregoing premises, the Civil Service Commission's opinion as embodied in its reply letter to petitioner dated December 15, 1998 sustaining petitioner's alleged permanent appointment as Executive Director of the Toll Regulatory Board on the basis of section 4 of Memorandum Circular No. 21 loses persuasion and applicability to the case at bar. Petitioner is not a CESO eligible. In other words, her instant petition is devoid of merit. WHEREFORE, the instant petition is hereby DENIED for lack of merit. The Decision dated July 25, 2000 rendered by the former Seventeenth Division of the Court of Appeals in CA-G.R. SP No. 54733 is AFFIRMED. Costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-107016

March 11, 1994

DEVELOPMENT BANK OF THE PHILIPPINES, VIVENCIO MACAPAGAL, ALFREDO CASAL, EDUARDO MENDOZA, ADORACION GARCIA, RODEL MAGNAYON, ROSARIO ELEP, MA. ANTONIO REBUENO, JOSE RIVERA, M. SAPALICIO and G. ROJAS, petitioners, vs. COMMISSION ON AUDIT, respondent. Office of the Legal Counsel for petitioners. The Solicitor General for respondent.

BIDIN, J.: This petition for certiorari seeks the reversal of the May 13, 1992 decision of respondent Commission on Audit (COA) disallowing the amount of P246,539.25 representing payment of customs duties and taxes for one (1) unit of KVA Uninterruptible Power Supply (UPS) purchased by petitioner Development Bank of the Philippines (DBP) at a public bidding conducted by DBP itself. On September 13, 1988 the Procurement Committee of DBP conducted a public bidding for one (1) unit of Uninterruptible Power Supply (UPS). Of the eight (8) suppliers who participated in the bidding, four (4) were disqualified outright for failure to submit the required bidder's bond. The remaining four (4) bidders were subjected to an evaluation process under the "must" criteria to determine whether the unit offered by the bidders complies with DBP's specifications. Under this evaluation process, only two (2) bidders qualified, namely: Paris-Manila Trading Corporation (Paris-Manila), and Voltronics Industrial Corporation (Voltronics). These bidders were further evaluated under the "wants" category which has the following criteria: (a) delivery time; (b) maintenance strategy; (c) cost; (d) manufacture support; and (e) company profile. Under this category, Paris-Manila got a rating of 75.02% while Voltronics got a rating of 78.75%. With respect to the amount of bids, Paris-Manila offered a bid in the amount of P2,493,000.00; Voltronics, on the other hand, offered P1,190,000.00 exclusive of customs duties and taxes at P246,539.25 or a total bid price of P1,436,539.25. On the basis of a thorough evaluation conducted, the Special Technical Committee recommended to the DBP Vice Chairman that the UPS be purchased from Voltronics. In this connection, DBP submitted all the bidding documents to the Corporate Auditor for pre-audit pursuant to COA Circular No. 86-257. After a review of the documents, then Corporate Auditor Elisa C. Gervasio issued a reply finding the subject transaction to be "in order" but with a corresponding observation regarding customs duties and taxes to wit: In our review of bidding documents for the purchase of one (1) unit Uninterruptible Power Supply System, we found the proposed Purchase Order No. 137 dated October 14, 1988 in order. We would like to invite your attention, however, for ( sic) the lack of additional provisions on the terms and conditions in the DBP Bid Form for customs duties and taxes for purchases of this kind. It is suggested that in future biddings, the quotation or bid price should always mean the total price to be paid by DBP including customs duties and/or other charges ( Rollo, p. 42). Thereafter, DBP issued Purchase Order No. 0137 to Voltronics at the adjusted price, i.e., P1,436,539.25 inclusive of customs duties and taxes. In the meantime, COA Circular No. 89-299 was passed lifting the pre-audit of government transactions. A new Corporate Auditor was also assigned to petitioner DBP. After a post-audit, the new Corporate Auditor sent an "Auditor's Notice to Person's Liable" to the Chairman of DBP notifying him of the disallowance of the amount of P246,539.25 representing customs duties and taxes and at the same time holding him, along with the other petitioners herein, jointly and severally liable for the aforesaid sum. DBP moved for reconsideration in a letter-clarification dated November 2, 1990 but the same was denied. On appeal, the Commission en banc affirmed the disallowance. In this petition, petitioner claims that: I RESPONDENT COMMISSION ERRED IN APPLYING THE POST-AUDIT SYSTEM UNDER COA CIRCULAR NO. 89-299 CONSIDERING THAT AT THE TIME OF THE QUESTIONED BIDDING THE "LAW" IN FORCE WAS COA CIRCULAR NO. 86-257 II RESPONDENT COMMISSION IS ESTOPPED FROM IMPUGNING THE DECISION OF ITS DULY CONSTITUTED REPRESENTATIVE EXERCISED IN THE ORDINARY COURSE OF ITS FUNCTION III RESPONDENT COMMISSION MISAPPRECIATED FACTS WHICH HAD THEY BEEN PROPERLY APPRECIATED WOULD HAVE ALTERED ITS DECISION The pivotal issue in this case hinges on whether or not the disallowance of the payment made by DBP representing customs duties and taxes is valid.

Petitioners submit the contrary on the ground that the transaction in question had already been approved and passed in audit in accordance with the pre-audit system then obtaining and the later circular requiring post-audit should not be applied retroactively. While it is true that the applicable procedure in force at the time of the questioned transaction was COA Circular 86-257 requiring a pre-audit, there is nothing to preclude respondent COA from conducting a post-audit of the already pre-audited transaction. As pointed out by the Solicitor General: A pre-audit is an examination of financial transactions before their consumption or payment and is basically a special development of the control aspect of accountancy as well as an integral part of the accounting and payment process. Thus, pre-audit seeks to determine that: 1. The proposed expenditure complies with an appropriation law or other specific statutory authority; 2. Sufficient funds are available for the purpose; 3. The proposed expenditure is not unreasonable or extravagant and the unexpended balance of appropriations where it will be charged to is sufficient to cover the entire amount thereof; and 4. The transaction is approved by proper authority and the claim is duly supported by authentic underlying evidences (COA Journal, August 1976, p. 8) (Rollo, p. 69). Besides, the favorable action of the then Corporate Auditor as regards the transaction does not necessarily mean that the same was passed in audit. Circular 86-57 provides: V. DUTIES AND RESPONSIBILITIES OF COA OFFICIALS AND REPRESENTATIVES The head of the audit unit shall: 3. Act on the transaction subject to pre-audit within twenty-four (24) hours from receipt by his Office of the pertinent vouchers/documents. The action herein required does not necessarily mean approval or allowing in audit. More importantly, Article IX (D) Section 2(1) of the Constitution expressly grants respondent Commission the power to conduct a post-audit, to wit: Sec. 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 or 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 . . . (emphasis supplied). DBP is no doubt a government corporation and the question of whether COA Circular 86-299 was retroactively applied to the subject transaction is thus of no moment. To begin with, there was never any retroactive application of post-audit. Regardless of the result of the pre-audit, it cannot be denied that respondent COA is so empowered to conduct a post-audit. It is thus erroneous for DBP to claim that respondent Commission is estopped from questioning, in the process of post-audit, the previous acts of its officials. Further, well-settled is the principle that estoppel does not lie against the government (Cruz, Jr. vs. Court of Appeals, 194 SCRA 145 [1991]; Republic vs. Court of Appeals, 182 SCRA 290 [1990]), more so if they are erroneous, let alone irregular (Republic vs. Intermediate Appellate Court, 209 SCRA 90 [1992]; Sharp International Marketing vs. Court of Appeals, 201 SCRA 299 [991]). As to whether or not the result of the post-audit is proper, in this case the disallowance of the customs duties and taxes, is another matter altogether. In the Notice to Persons Liable, the Corporate Auditor disallowed the payment of customs duties since "there was no quotation on this regard and to include this further would improve the bid after the opening which privilege was not given to other bidders" (Rollo, p. 43). On its face, it would appear that the Auditor's reason aforequoted was based on the presumption that petitioner DBP had no knowledge whatsoever that the price quoted by Voltronics did not include customs duties and taxes, i.e., there was no disclosure of such fact by Voltronics at the time of the bidding. In fact, the question of whether or not Voltronics so informed petitioner DBP of the non-inclusion of customs duties and taxes in its bid became the thrust of both petitioner DBP and respondent COA's pleadings submitted before this Court. DBP maintains that it was so informed by Voltronics in a letter dated September 12, 1988 along with the bid form that its quotation did not include the customs duties and taxes. Petitioner DBP insists that subsequent communications even made reference to this letter. On the other hand, respondent COA claims that there was no such attachment to the bid form and if there was any, the form would have so stated. Since there was no mention anywhere in the bid form of Voltronics or the Abstract of Bids as to any attachment, respondent COA concludes that no September 12, 1988 letter was appended thereto. In the light of all these contentions, it is difficult to determine with utmost certainty the truth as to the existence of the September 12, 1988 letter at the time of or even prior to the opening of the bids. However, inasmuch as this is a question of fact involving an occurrence where DBP itself participated as the party conducting the bidding, the presumption lies in favor of the latter that such a letter did exist informing if that the quoted bid of Voltronics excluded customs duties and taxes. Bolstering this position is a November 14, 1990 letter of the Senior Vice President of DBP for Operations addressed to the Corporate Auditor confirming the fact that "Supplementary to the Bid Form submitted by Voltronics Industrial Corp. (winning bidder) is a letter dated September 12, 1988 (Annex C) specifically mentioning that its bid of P1,190,000.00 does not include customs duties and taxes (Rollo, p. 44; emphasis supplied). But even without the contested letter, it cannot be denied that

Voltronics did specify in its bid "DUTIES AND TAXES NOT INCLUDED" (Rollo, p. 25). This alone would suffice to sustain the claim that DBP was well aware of Voltronics' bid to be exclusive of the aforesaid charges. In this regard, the notice of disallowance which states: "(w)hen Voltronics offered the amount of P1,190,000.00, it is understood that said amount represents the total cost to paid (sic) by DBP upon delivery of the item, i.e., taxes/customs duty, handling costs" (Rollo, p. 43) deserves scant consideration. It was based merely on the presumption that the bidders had prior understanding of what the "total" bid price should comprise, when in truth there was no clear-cut definition of the term conveyed to the participating bidders. In fact, such lack of prior understanding compelled the former Corporate Auditor, who, after pre-auditing the questioned transaction, suggested that "in future biddings, the quotation or bid price should always mean the total price to be paid by DBP including customs duties and/or other charges" (Rollo, p. 42). Surely, the former Corporate Auditor would not have found the need to define in clearer terms what "total bid price" should refer to if it was already a settled concept to begin with. Neither can we subscribe to the argument of respondent COA that the allowance of the questioned amount would be tantamount to granting a privilege to Voltronics which was not accorded to the other bidders. As far as the use of the term "privilege" is concerned, it would be well to point out that no such privilege was accorded to Voltronics. The then Corporate Auditor was well aware of the non-inclusion of duties and taxes relative to the purchase of the UPS. This notwithstanding, she found the Purchase Order to be in order knowing that even if the duties and taxes amounting to P246,539.25 were to be added to the bid price of P1,190,000.00, the total selling price would still be lower by more than a million pesos than the selling price offered by Paris-Manila. Based on the above computation and in so allowing the payment of P246,539.25, representing custom duties and taxes, no undue advantage could be said to have been awarded to Voltronics. And as far as Voltronics is concerned, there is no doubt that it acted in good faith. Secondly, Voltronics came out as the winner of the bidding only after undergoing the evaluation process required by petitioner DBP. Hence, the amount of the bid was not the only consideration for choosing Voltronics as the winning bidder. It also ranked higher than Paris-Manila under the "wants" criteria with a rating of 78.75%. Thirdly, even if the same "privilege" of "improving" its bid after the same has been opened were accorded to the socalled "other" bidders, only Paris-Manila would qualify as the "other" bidder(s) since it was the only one aside from Voltronics which qualified under the "must" criteria, the final stage of the evaluation process. All the rest were either immediately disqualified or did not meet the standards of the aforesaid criteria. Thus, even if Paris-Manila were afforded the opportunity to improve its bid, considering the disparity of its bid with Voltronics' bid of P1,436,539.25, inclusive of duties and taxes, the latter would still be the lowest bidder. In other words, the alleged "privilege" had little effect on the ultimate outcome of the bidding. Inasmuch as neither Paris-Manila nor petitioner DBP was prejudiced by allowing the exclusion of the customs duties and taxes to the total bid price, the result of the pre-audit should be allowed to stand. WHEREFORE, the petition is GRANTED. The decision of respondent COA dated May 13, 1992 is hereby REVERSED and SET ASIDE. Respondent COA is hereby DIRECTED to allow in post-audit the payment of P246,539.25. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-3659 April 30, 1954

PHILIPPINE OPERATIONS, INC., petitioner, vs. AUDITOR GENERAL OF THE PHILIPPINES and the BUREAU OF PERSONS, respondents. Rafael Dinglasan and Claro M. Recto for petitioner. Office of the Solicitor General Felix Bautista Angelo and Solicitor Ramon L. Avancea for respondents. LABRADOR, J.: This is an appeal from a decision of the Auditor General denying a claim of the Philippine Operations, Inc., against the government amounting to P105,000.00. The circumstances leading to this appeal are briefly as follows: On October 3, 1947, the petitioner herein, Philippine Operations, Inc., entered into a barter agreement with the Bureau of Prisons whereby it agreed to deliver to the Bureau a sawmill, complete, with a diesel fuel engine, a stop saw edge and log turner, etc., and two LCMs in good turning condition, in exchange for 350,000 board feet of sawed lumber (Annex A). The principal conditions of the barter agreement are as follows: 1. That Party of the Second Part shall deliver to the party of the First Part, the Sawmill above described, complete, with accessories already created, in Mindoro where it is at present located, after the same shall have inspected and found satisfactory; 2. That the Party of the Second Part shall deliver to the Party of the First Part, the two (2) LCMs, in good running condition, in Manila at the Pasig River, after the same shall have been inspected and found satisfactory; 3. That the Party of the First Part shall deliver to the Party of the Second Part, SEVENTY THOUSAND (70,000) bd. ft. of sawed lumber (Apitong, Malugay or Amugis) thirty days after installation of the sawmill, and SEVENTY THOUSAND (70,000) bd. ft. of said lumber every month thereafter, until the Party of the First Part shall have delivered to the Party of the Second Part THREE HUNDRED FIFTY THOUSAND (350,000) bd. ft. of lumber. The receipt that an employee of the Bureau of Prisons issued for the sawmill and its accessories discloses the following unsatisfactory conditions: there was no belting for the main saw; there was one carriage frame broken; one head block was without hook and doe; there was no steel rope cable for carriage drive; and all other important parts of the machine were worn out and rusty and needing overhauling. The cable and the belting, however, were furnished the Bureau of Prisons on February 4, 1948 (Annex C). As to the landing barges, one was received without any statement as to its condition, while the other, upon inspection, was found acceptable, although various spare parts were missing (Annex E). The person who received the landing barge recommended that the spare parts needed to put it in running condition be deducted from the contract price. Claim is made by the Bureau of Prisons that when the barges were examined at the Davao Penal Colony, the petitioner and its representative were advised verbally about the defects therein, and so were they with respect to the parts of the sawmill when it was found. Upon delivery to the Iwahig Penal Colony, that it was not in good running condition and that some parts were missing; and that petitioner's manager agreed to reimburse the Bureau of Prisons for whatever expenses the latter may incur in putting the equipment in good running condition. (2nd Indorsement of the Director of Prisons dated November 26, 1948.) At the time the above indorsement was written, the repairs on the barges and the sawmill had not yet been completed. When around a year later, it became evident that it was not feasible for the Bureau of Prisons to deliver the lumber, obviously due to the delay in the installation, the petitioner herein proposed to obtain surplus properties from the Surplus Property Commission in lieu of the lumber so as to finally liquidate the obligation contracted by the Bureau of Prison. It turned out, however, that no equipment could be found in the various Surplus Property Commission depots which could be of service to the petitioner herein, so it proposed that the corporation be credited with the amount of P70,000 and be allowed to bid and negotiate in future surplus offerings up to that amount. (Annex B to letter of Counsel for petitioner to Auditor General dated June 20, 1949.) Again, on November 2, 1948, petitioner offered to acquire certain surplus properties located in Manicani Island, Samar, for P100,000, with the suggestion that this price be paid for with its credit of P70,000, plus an additional amount of P30,000 with which to complete the full price above mentioned. (Annex C, Ibid.) As no definite arrangement could be arrived at, the Bureau of Prisons in the second indorsement of November 26, 1948, already alluded to, declared that the Bureau had made preparations to deliver the lumber from Davao Penal Colony, and that it had a sufficient quantity of logs stored to make initial delivery. Evidently, no action was taken by the petitioner on this advice of the Director of Prisons. On June 20, 1949, the attorney for the petitioner filed a claim with the Auditor General. On August 26, 1949, the Director of Prisons offered to deliver the first installment of sawed lumber after 30 days. This offer was rejected by the petitioner on the ground that the offer to deliver the lumber came too late, and it demanded that cash payment of P70,000 be paid to it, plus P35,000 for damages suffered. Upon the presentation of the claim with the Auditor General, the latter sought of the opinion of the Secretary of Justice, and this official on January 3, 1950, held that inasmuch as the contract entered into was one of barter, pure and simple, and not one of purchase and sale, and as no money consideration ever entered the minds of the parties at the time of the agreement, the demand of the petitioner for P70,000 should be denied, and that instead in view of the willingness of the Bureau of Prisons to perform its part of the obligation, the contract be carried out by the immediate delivery of the P350,000 board feet of lumber stipulated in the agreement. (See 6th Indorsement of the Department of Justice dated January 3, 1950.) On the basis of this opinion, the Auditor General denied the petitioner's claim, and the latter thereafter appealed to this Court.

It is to be noted at the outset that the original contract of barter did not state what the value was of the barges and sawmill to be delivered, or that of the 350,000 board feet of sawn lumber to be given in exchange. As early as October 8, 1948, when attempts were made to settle the obligation of the Bureau of Prisons in terms of surplus materials, petitioner herein had claimed that the value of the barges and sawmill delivered was P70,000. (See letters of October 8, 1948, and November 2, 1948, the Director of Prisons had averred that he entered into a barter agreement fixing P35,000 as the value of the equipment, equivalent to the P350,000 board feet which it promised to deliver in exchange, at P0.10 a board foot. There is question, therefore, whether the equipment could be valued at P70,000 or not. The respondent claims that the condition in which the barge and the machinery were found at the time of delivery was unsatisfactory. The Director of Prisons stated in his indorsement that notice of these defects was given the petitioner through one Mr. Rowe and Mr. Enriquez, and this fact is not, nor does not appear to be, denied. The receipt issued upon the delivery of the sawmill shows that there were many parts missing, and states that the specification that most of the parts and engines needed complete overhauling was a notice to the petitioner that the sawmill was not found satisfactory upon inspection. But the claim of petitioner, as presented to the Auditor General, alleges that the machinery were found satisfactory and in good running condition, on the ground that the Bureau of Prisons had accepted the delivery thereof. There is therefore, also an issue as to the condition of the equipment bartered. Again, it is the contention of the government, as indicated in the opinion of the Secretary of Justice, that inasmuch as the first delivery of lumber was to take effect upon the installation of the sawmill, said installation was an essential element of the contract, and consequently its obligation to deliver the lumber did not accrue upon the delivery of the barges and machinery, and the accessories thereof by the Bureau of Prisons, but from the moment that the installation was finished. Lastly, the amount of petitioner's claim for damages for damages does not appears to have been admitted by the Bureau of Prisons or by any official of the Government, so that outside of petitioner's right thereto, its amount, assessed at P35,000, can not be considered as a fact admitted by the adverse party. The above considerations regarding the existence of issues with regard to petitioner' claim for P105,000 are set forth in view of the defense set up by the Bureau of Prisons that the Auditor General has no jurisdiction over petitioner's claim, and that the same is not authorized under Commonwealth Act No. 327. However, it now appears that in April, 1950, pending determination of petitioner' claim, the 350,000 board feet of lumber agreed to be delivered by the Bureau of Prisons were, by agreement of both parties, to be sold and the proceeds delivered to petitioner. The latter has actually received the sum of P45,500. So the claims of petitioner at the time of the submission of this case to the Court for decision are, (1) the amount of P24,500 representing the difference between the alleged market value of the lumber of P70,000 and the amount of P45,500 received, and (2) the amount of P35,000 representing the damages allegedly suffered by the petitioner due to the delay in the delivery of the lumber. The respondents contend that Commonwealth Act No. 327, which imposes upon the Auditor General the duty of acting upon and deciding "all cases involving the settlement of accounts or claims other than those of accountable officers," does not authorize or empower the Auditor General to pass upon the petitioner's claim for P105,000, because the term "claims", used in the said Act can refer to no other that liquidated claims, as held in the case of Compaia General de Tabacos vs. French and Unson, 39 Phil. 34. In reply the petitioner argues that under Commonwealth Act No. 3038, Sections 1 and 2, the Auditor General has been granted the additional power upon "any moneyed claim involving arising from contract express or implied, which could serve as basis for civil action between private parties," and that even granting that the Auditor General has jurisdiction only over liquidated claims, the claim has for P70,000 is a liquidated claim because it has been accepted by the parties as such. Before the advent of the Commonwealth Government, the jurisdiction of the Auditor General to pass upon and decide claims of private persons against the Government was contained in sections 24 and 25 of the Jones Law promulgated August 29, 1916. The pertinent provisions of the said law are as follows: SEC. 24. . . . The Auditor shall, except as hereinafter provided, have the like authority as that conferred by law upon the several auditors of the United States Treasury and is authorized to communicate directly with any person having claims before him for settlement, or with any department, officer, or person having official relations with his office. SEC. 25. That any person aggrieved by the action or decision of the Auditor in the settlement of his account or claim may, within one year, take an appeal in writing to the Governor-General, which appeal shall specifically set forth the particular action of the Auditor to which exception is taken, with the reason and authorization relied on for reversing such decision. The powers of treasury officials of the United States over the settlement of accounts has always been clearly distinguished from their power over claims. It has been generally held that an account is something which may be adjusted and liquidated by an arithmetical computation (Power vs. U.S., 18 Court of Claims 263; 31 USCA 23), and that claims for unliquidated damages can not be considered as accounts and are not committed by law to their control and decision. ( Ibid.; McClure vs. U.S., 19 Court of Claims 173, 179; Denis vs. U.S., 20 Court of Claims, 119, 121; U.S. vs. Mckee, 97 U.S. 233, 24 L. ed. 911; 31 USCA 23-24.) The reason for denying treasury officials of the United States jurisdiction over unliquidated damages for breach of contract is because these claims "often involve a broad field of investigation and require the application of judgment and discretion upon the measure of damages and the weight of conflicting evidence. ( Ibid.) A case is decided in this jurisdiction while the Jones Law was still in force is that of Compaia General de Tabacos vs. French and Unson, 39 Phil. 34, 42, where we held: Section 584 of the Administrative Code of 1917 is very similar in its terms to section 236 of the Revised Statutes of the United States which reads as follows: All claims and demands whatever in which the United States are concerned, either as debtors or as creditor, shall be settled and adjusted in the Department of the Treasury. Nevertheless, the words "all claims and demands whatever . . . against" the United States as used in this statute have held been repeatedly not to authorize the officers of the Treasury Department to entertain unliquidated claims against the United States for damages. In the case of Power vs. United States (18 C. Cls. R., 275), Judge Davis writing the opinion of the court said: An account is something which may be adjusted and liquidated by an arithmetical process . . .. But no law law authorizes Treasury officials to allow and pass in accounts a number not the result of numerical computation upon a subject within the operation of a mutual part of contract. Claims for unliquidated damages require for their settlement the application of the qualities of judgment and discretion. They are frequently, perhaps generally sustained by extraneous proof, having no relation to the subjects of the contract which are common to both parties. . . .. The results to be reached in such cases can in no just sense be called an account, and are not committed by law to the control and decision of Treasury accounting officers.

It is contended on behalf of the petitioner that Act No. 3083 authorizes the auditor to take the cognizance of unliquidated claims. We find nothing in the context from which this contention can be inferred. The term used is moneyed claims, which has a well-defined concept under the Jones law as above indicated. There are other fundamental reasons why Act No. 3083 could not have contemplated unliquidated claims, or cases where the liability of the Government or its nonliability is in issue. In these cases the most important questions to be determined are judicial in nature, involving the examination of evidence and the use of judicial discretion. To assume that the legislature granted this jurisdiction to an administrative officer like the Auditor General is not warranted, because it would amount to an illegal act, as a delegation of judicial power to an executive officer. If the power were interpreted as having been granted to the Auditor General to pass upon the rights of private persons, without the judicial process established by the Constitution and the laws, private parties would be deprived of their property without due process of law. For these very obvious reasons, therefore, Act No., 3083 may not be interpreted to grant jurisdiction to the Auditor General to determine and decide cases involving unliquidated damages. Having come to the conclusion that under the Jones law and the laws in force up to the time of the adoption of the Constitution the Auditor General has no jurisdiction or power to take cognizance of claims for unliquidated damages, we now come to the questions as to whether under the provisions of the Constitution and the laws enacted thereafter by Congress, such power may not be considered as having been lodged in the Auditor General. An examination of the provisions of the Constitution fails to disclose any power vested in or granted to the Auditor General to consider claims. All that is vested in the Auditor General is the settlement of accounts. "Accounts," because of the absence of any reasons to the contrary, must be deemed to have the same meaning as accounts under the laws in force before the approval of the Constitution. The Constitution does not grant the Auditor General the right to consider claims. After the promulgation of the Constitution, the power was granted under the provisions of Commonwealth Act No. 327. We have examined this law, and we find nothing therein to show that the term "moneyed claims," the jurisdiction over which is granted the Auditor General, should not be interpreted in the same sense that it was understood prior to the adoption of the Constitution. The above considerations would suffice to dispose of the case. We prefer to rest the decision thereof, however, not on the technical ground of jurisdiction alone, but on the merits also. The only remaining part of the original part of the original claim presented by the petitioner is the supposed damage caused by the delay in the delivery of the lumber. It is claimed by the petitioner that P24,500 and P35,000 represent the difference between the actual value of the lumber received by it in April 1950, and the value thereof had it been delivered within a reasonable time after the delivery of the sawmill and the landing barges. A first reason for denying the claim is the fact that the delay was due to the failure on the part of the petitioner, party of the second part, to deliver the sawmill in the condition it was to be delivered, i.e., the sawmill shall be "complete" and upon the inspection "found satisfactory." The two landing barges were also agreed to be in good running condition, but on delivery one of them was found with various spare parts missing, and these had to be purchased to put it "in running condition." The sawmill and the landing barges were, therefore, unsatisfactory and were not as guaranteed in the barter agreement. The fact that the petitioner itself purchased various spare parts both for the sawmill and the landing barges in order to complete them, is a clear admission on its parts of its failure to deliver the sawmill and barges complete. The obligation of the party of the first part to deliver the lumber in exchange for the equipment was to accrue or became due "thirty days after the installation of the sawmill." But the delay in said installation is not attributable to the party of the first part, but to the party of the second part, which had not complied with its obligation to deliver the equipment and machinery " in good running condition." The responsibility for the resulting delay in the delivery of the lumber may not, therefore, be laid at the door of the party of the first part, but to that of the party of the second part, which had failed to live up to its obligation. A second reason is the fact that the party of the second part was ready to deliver the lumber in November , 1948, even before the sawmill could be installed, but the petitioner preferred to be paid in another manner. The original agreement was entered into on October 3, 1947, and the missing parts of the sawmill were furnished only in the month of February, 1948. Before the end of the year 1948, even if the installation of the sawmill had not yet been completed, the Director of Prisons offered to deliver the lumber to the petitioner (See 2nd Indorsement of the Director of Prisons dated November 26, 1948), but at that time petitioner was not ready and willing to accept the lumber, for it had proposed, with the consent of the party of the first party, that the value of the sawmill and the landing barges was to be collected by it in the form of surplus materials. This attempted modification of the contract, by allowing the party of the second part to accept surplus materials instead of the number, was to a great extent, the cause for the belated delivery of the lumber. The above considerations clearly show that the claim of the petitioner for P24,500 and P35,000 damages can not be sustained, for admitting that the said amounts represent the difference in the value between the lumber delivered in April, 1950, and that which was to be delivered within thirty days after the installation of the sawmill, the delay in the delivery was due to petitioner's own fault, namely, its failure to deliver the sawmill and the landing barges complete and in satisfactory condition it had guaranteed them, and in part to its desire to change the lumber for surplus materials. For the foregoing considerations, the petition for review is hereby dismissed, with costs against the petitioner.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 162224 June 7, 2007

2nd LT. SALVADOR PARREO represented by his daughter Myrna P. Caintic, Petitioner vs. COMMISSION ON AUDIT and CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, Respondents.

DECISION CARPIO, J.: The Case Before the Court is a petition for certiorari[1] assailing the 9 January 2003 Decision[2] and 13 January 2004 Resolution[3] of the Commission on Audit (COA). The Antecedent Facts Salvador Parreo (petitioner) served in the Armed Forces of the Philippines (AFP) for 32 years. On 5 January 1982, petitioner retired from the Philippine Constabulary with the rank of 2nd Lieutenant. Petitioner availed, and received payment, of a lump sum pension equivalent to three years pay. In 1985, petitioner started receiving his monthly pension amounting to P13,680. Petitioner migrated to Hawaii and became a naturalized American citizen. In January 2001, the AFP stopped petitioners monthl y pension in accordance with Section 27 of Presidential Decree No. 1638[4] (PD 1638), as amended by Presidential Decree No. 1650.[5] Section 27 of PD 1638, as amended, provides that a retiree who loses his Filipino citizenship shall be removed from the retired list and his retirement benefits terminated upon loss of Filipino citizenship. Petitioner requested for reconsideration but the Judge Advocate General of the AFP denied the request. Petitioner filed a claim before the COA for the continuance of his monthly pension. The Ruling of the Commission on Audit In its 9 January 2003 Decision, the COA denied petitioners claim for lack o f jurisdiction. The COA ruled: It becomes immediately noticeable that the resolution of the issue at hand hinges upon the validity of Section 27 of P.D. No. 1638, as amended. Pursuant to the mandate of the Constitution, whenever a dispute involves the va lidity of laws, the courts, as guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. Where the statute violates the Constitution, it is not only the right but the duty of the judiciary to declare such act as unconstitutional and void. (Tatad vs. Secretary of Department of Energy, 2 81 SCRA 330) That being so, prudence dictates that this Commission defer to the authority and jurisdiction of the judiciary to rule in the first instance upon the constitutionality of the provision in question. Premises considered, the request is denied for lack of jurisdiction to adjudicate the same. Claimant is advised to file his claim with the proper court of original jurisdiction.[6] Petitioner filed a motion for reconsideration. Petitioner alleged that the COA has the power and authority to incidentally rule on the constitutionality of Section 27 of PD 1638, as amended. Petitioner alleged that a direct recourse to the court would be dismissed for failure to exhaust administrative remedies. Petitioner further alleged that since his monthly pension involves government funds, the reason for the termination of the pension is subject to COAs a uthority and jurisdiction. In its 13 January 2004 Resolution, the COA denied the motion. The COA ruled that the doctrine of exhaustion of administrative remedies does not apply if the administrative body has, in the first place, no jurisdiction over the case. The COA further ruled that even if it assumed jurisdiction over the claim, petitioners entitlement to the retirement benefits he was previously receiving must necessarily cease upon the loss of his Filipino citizenship in accordance with Section 27 of PD 1638, as amended. The Issues

Petitioner raises the following issues:

1. 2. 3.

Whether Section 27 of PD 1638, as amended, is constitutional; Whether the COA has jurisdiction to rule on the constitutionality of Section 27 of PD 1638, as amended; and Whether PD 1638, as amended, has retroactive or prospective effect.

The Ruling of this Court The petition has no merit. Jurisdiction of the COA Petitioner filed his money claim before the COA. A money claim is a demand for payment of a sum of mone y, reimbursement or compensation arising from law or contract due from or owing to a government agency.[8] Under Commonwealth Act No. 327,[9] as amended by Presidential Decree No. 1445,[10] money claims against the government shall be filed before the COA.[11] Section 2(1), Article IX(D) of the 1987 Constitution prescribes the powers of the COA, as follows: Sec. 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 or 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 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. The jurisdiction of the COA over money claims against the government does not include the power to rule on the constitutionality or validity of laws. The 1987 Constitution vests the power of judicial review or the power to declare unconstitutional a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in this Court and in all Regional Trial Courts.[12] Petitioners money claim essentially involved the constitutionality of Sec tion 27 of PD 1638, as amended. Hence, the COA did not commit grave abuse of discretion in dismissing petitioners money claim. Petitioner submits that the COA has the authority to order the restoration of his pension even without ruling on the constitutionality of Section 27 of PD 1638, as amended. The COA actually ruled on the matter in its 13 January 2004 Resolution, thus: Furthermore, assuming arguendo that this Commission assumed jurisdiction over the instant case, claimants entitlement to the retirement benefits he was previously receiving must necessarily be severed or stopped upon the loss of his Filipino citizenship as prescribed in Section 27, P.D. No. 1638, as amended by P.D. No. 1650.[13] The COA effectively denied petitioners claim because of the loss of his Filipino citizenship. Application of PD 1638, as amended Petitioner alleges that PD 1638, as amended, should apply prospectively. The Office of the Solicitor General (OSG) agrees with petitioner. The OSG argues that PD 1638, as amended, should apply only to those who joined the military service after its effectivity, citing Sections 33 and 35, thus: Section 33. Nothing in this Decree shall be construed in any manner to reduce whatever retirement and separation pay or gratuity or other monetary benefits which any person is heretofore receiving or is entitled to receive under the provisions of existing law. xxxx Section. 35. Except those necessary to give effect to the provisions of this Decree and to preserve the rights granted to retired or separated military personnel, all laws, rules and regulations inconsistent with the provisions of this Decree are hereby repealed or modified accordingly. The OSG further argues that retirement laws are liberally construed in favor of the retirees. Article 4 of the Civil Code pr ovides: Laws shall have no retroactive effect, unless the contrary is provided. Section 36 of PD 1638, as amended, provides that it shall take effect upon its approval. It was signed on 10 September 1979. PD 1638, as amended, does not provide for its retroactive application. There is no question that PD 1638, as amended, applies prospectively. However, we do not agree with the interpretation of petitioner and the OSG that PD 1638, as amended, should apply only to those who joined the military after its effectivity. Since PD 1638, as amended, is about the new system of retirement and separation from service of military personnel, it should apply to those who were in the service at the time of its approval. In fact, Section 2 of PD 1638, as amended, provides that th[e] Decree shall apply to all military personnel in the service of the Armed Forces of the Philippines. PD 1638, as amended, was signed on 10 September 1979. Petitioner retired in 1982, long after th e approval of PD 1638, as amended. Hence, the provisions of PD 1638, as amended, apply to petitioner. Petitioner Has No Vested Right to his Retirement Benefits Petitioner alleges that Section 27 of PD 1638, as amended, deprives him of his property which the Constitution and statutes vest in him. Petitioner alleges that his pension, being a property vested by the Constitution, cannot be removed or taken from him just because he became a naturalized American citizen. Petitioner further alleges that the termination of his monthly pension is a penalty equivalent to deprivation of his life. The allegations have no merit. PD 1638, as amended, does not impair any vested right or interest of petitioner. Where the employee retires and meets the eligibility requirements, he acquires a vested right to the benefits that is protected by the due process clause.[14] At the time of the approval of PD 1638 and at the time of its amendment, petitioner was still in active service. Hence, petitioners retirement benefits were only future benefits and did not constitute a vested right. Before a right to retirement benefits or pension vests in an employee, he must have met the stated conditions of eligibility with respect to the nature of employment, age, and length of

service.[15] It is only upon retirement that military personnel acquire a vested right to retirement benefits. Retirees enjoy a protected property interest whenever they acquire a right to immediate payment under pre-existing law.[16] Further, the retirement benefits of military personnel are purely gratuitous in nature. They are not similar to pension plans where employee participation is mandatory, hence, the employees have contractual or vested rights in the pension which forms part of the compensation.[17] Constitutionality of Section 27 of PD 1638 Section 27 of PD 1638, as amended, provides: Section 27. Military personnel retired under Sections 4, 5, 10, 11 and 12 shall be carried in the retired list of the Armed Forces of the Philippines. The name of a retiree who loses his Filipino citizenship shall be removed from the retired list and his retirement benefits terminated upon such loss. The OSG agrees with petitioner that Section 27 of PD 1638, as amended, is unconstitutional. The OSG argues that the obligation imposed on petitioner to retain his Filipino citizenship as a condition for him to remain in the AFP retired list and receive his retirement benefit is contrary to public policy and welfare, oppressive, discriminatory, and violative of the due process clause of the Constitution. The OSG argues that the retirement law is in the nature of a contract between the government and its employees. The OSG further argues that Section 27 of PD 1638, as amended, discriminates against AFP retirees who have changed their nationality. We do not agree. The constitutional right to equal protection of the laws is not absolute but is subject to reasonable classification.[18] To be reasonable, the classification (a) must be based on substantial distinctions which make real differences; (b) must be germane to the purpose of the law; (c) must not be limited to existing conditions only; and (d) must apply equally to each member of the class.[19] There is compliance with all these conditions. There is a substantial difference between retirees who are citizens of the Philippines and retirees who lost their Filipino citizenship by naturalization in another country, such as petitioner in the case before us. The constitutional right of the state to require all citizens to render personal and military service[20] necessarily includes not only private citizens but also citizens who have retired from military service. A retiree who had lost his Filipino citizenship already renounced his allegiance to the state. Thus, he may no longer be compelled by the state to render compulsory military service when the need arises. Petitioners loss of Filipino citizenship constitutes a substantial distinction that distinguishes him from other retirees who retain their Filipino citizenship. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another.[21] Republic Act No. 7077[22] (RA 7077) affirmed the constitutional right of the state to a Citizen Armed Forces. Section 11 of RA 7077 provides that citizen soldiers or reservists include ex-servicemen and retired officers of the AFP. Hence, even when a retiree is no longer in the active service, he is still a part of the Citizen Armed Forces. Thus, we do not find the requirement imposed by Section 27 of PD 1638, as amended, oppressive, discriminatory, or contrary to public policy. The state has the right to impose a reasonable condition that is necessary for national defense. To rule otherwise would be detrimental to the interest of the state. There was no denial of due process in this case. When petitioner lost his Filipino citizenship, the AFP had no choice but to stop his monthly pension in accordance with Section 27 of PD 1638, as amended. Petitioner had the opportunity to contest the termination of his pension when he requested for reconsideration of the removal of his name from the list of retirees and the termination of his pension. The Judge Advocate General denied the request pursuant to Section 27 of PD 1638, as amended. Petitioner argues that he can reacquire his Filipino citizenship under Republic Act No. 9225[23] (RA 9225), in which case he will still be considered a natural-born Filipino. However, petitioner alleges that if he reacquires his Filipino citizenship under RA 9225, he will still not be entitled to his pension because of its prior termination. This situation is speculative. In the first place, petitioner has not shown that he has any intention of reacquiring, or has done anything to reacquire, his Filipino citizenship. Secondly, in response to the request for opinion of then AFP Chief of Staff, General Efren L. Abu, the Department of Justice (DOJ) issued DOJ Opinion No. 12, series of 2005, dated 19 January 2005, thus: [T]he AFP uniformed personnel retirees, having re-acquired Philippine citizenship pursuant to R.A. No. 9225 and its IRR, are entitled to pension and gratuity benefits reckoned from the date they have taken their oath of allegiance to the Republic of the Philippines. It goes without saying that these retirees have no right to receive such pension benefits during the time that they have ceased to be Filipinos pursuant to the aforequoted P.D. No. 1638, as amended, and any payment made to them should be returned to the AFP. x x x.[24] Hence, petitioner has other recourse if he desires to continue receiving his monthly pension. Just recently, in AASJS Member-Hector Gumangan Calilung v. Simeon Datumanong,[25] this Court upheld the constitutionality of RA 9225. If petitioner reacquires his Filipino citizenship, he will even recover his natural-born citizenship.[26] In Tabasa v. Court of Appeals,[27] this Court reiterated that [t]he repatriation of the former Filipino will allow him to recover his natu ral-born citizenship x x x. Petitioner will be entitled to receive his monthly pension should he reacquire his Filipino citizenship since he will again be entitled to the benefits and privileges of Filipino citizenship reckoned from the time of his reacquisition of Filipino citizenship. There is no legal obstacle to the resumption of his retirement benefits from the time he complies again with the condition of the law, that is, he can receive his retirement benefits provided he is a Filipino citizen. We acknowledge the service rendered to the country by petitioner and those similarly situated. However, petitioner failed to overcome the presumption of constitutionality of Section 27 of PD 1638, as amended. Unless the provision is amended or repealed in the future, the AFP has to apply Section 27 of PD 1638, as amended. WHEREFORE, we DISMISS the petition. We AFFIRM the 9 January 2003 Decision and 13 January 2004 Resolution of the Commission on Audit. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 130685

March 21, 2000

FELIX UY, ROMAN CAGATIN, JAMES ENGUITO, EMMIE HURBODA FRANCISCO OLAER, LEONCIO BUSTAMANTE, FRANCISCO RANARIO, JOE OSIN, JORGE PEDIDA, JOSE BATISTING, LUCIO BATISTING, SEGUNDINO BOLOTAOLO, HEIRS OF DEMOCRITO RANARIO Represented by FRANCISCO RANARIO, HEIRS OF LOPE NAKILA, BONIFACIO BUSCAGAN, MARIANO CAPA, JUAN MORALES, GODOFREDO RACHO, ELIZABETH AMARILLO, BENIGNO ACAMPADO, PEDRO AREGLO, SERVITO BATAO, ELEODORO BATISTING, ROGELIO DE CLARO, SILFORO LIBANDO, HILARIO MARINAS, ALEJANDRO NOJA, HEIRS OF PEDRITA OLAER Represented by surviving spouse Francisco Olaer, HEIRS OF SILFORO MORALES Represented by EVANGELINA MORALES, ANTONIO RETUERTO, STELLA FILIPINAS, TEODOLO FILIPINAS, HEIRS OF MANSUETO NATAD Represented by NATIVIDAD NATAD, AMADO MAGSIGAY, TIMOTEO GOLORAN, GREGORIO SEQUILLA, HEIRS OF ANTONIO CANOY, APOLINARIO PLAZA, JESUS GUDELASAO, HEIRS OF APOLONIO ANTIPASADO, TERESO CAGADAS, LUCIO BARONG, LEONARDO LAPIZ, FRANCISCO PAIGAN, ARTURO ESCOBIDO, BONIFACIO BUNOL, HEIRS OF FRANCISCO PATAYAN Represented by NORMA PATAYAN, SALVADOR CENA, BASILIO PAJE, DOMINADOR DAGONDON, FAUSTINO LASTIMADO, EMPERATRIZ MORAN, EUGENIO MIRA, ANGELO PLAZA, DEMETRIA ABAY-ABAY, ROLANDO GASCON, DOROTEO GASCON, RIZALINO CUBILLAS, HEIRS OF FAUSTINO MAGLAHUS Represented by LUISA MAGLAHUS, and JOEL PLAZA, petitioners, vs. COMMISSION ON AUDIT, Represented by its Chairman, CELSO D. GANGAN and by its Commissioners, SOFRONIO B. URSAL and RAUL C. FLORES, respondents.

PUNO, J.: Petitioners were among the more than sixty permanent employees of the Provincial Engineering Office, Province of Agusan del Sur, who were dismissed from the service by then Governor Ceferino S. Paredes, Jr. when the latter assumed office, allegedly to scale down the operations of the said office.1 On July 11, 1988, a petition for reinstatement was filed by petitioners before the Merit Systems Protection Board (MSPB), docketed as MSPB Case No. 91-1739, alleging that Governor Paredes was motivated by political vengeance when he dismissed them and hired new employees to replace them. It appears that during the pendency of the petition for reinstatement, Governor Paredes issued Memorandum Order No. 3-A dated March 20, 1989 providing for the hiring of casual employees to replace the dismissed employees, allegedly due to exigency of service.1wphi1.nt The MSPB required Governor Paredes to comment on the petition. On February 1, 1989, the governor specifically denied the allegations of petitioners that their dismissal was illegal. Subsequently, an amended petition and an amended answer were filed by the parties. Hearings were conducted by the Civil Service Regional Office No. X, Cagayan de Oro City, where both parties were represented by their respective counsels. The last hearing was held on June 29, 1990, after which the parties submitted their respective memorandum together with their evidence. On January 29, 1993, the MSPB rendered a decision holding that the reduction in work force was not done in accordance with civil service rules and regulations, and ordering the reinstatement of petitioners.2 The pertinent portions of said decision state, viz: The focal point of controversy is whether or not Administrative Order No. 88-01 streamlining the personnel complement of the PEO is in accordance with Civil Service Laws, Rules and Regulations. The law applicable in the case at bar, which is hereby quoted as follows are Section 29 of E.O. 292 and Section 14 of the Rules on Personnel Actions and Policies, thus: Sec. 29. Reduction in Force. Whenever it becomes necessary for lack of work or funds or due to change in the scope or nature of an agency's program or as a result of reorganization, to reduce the staff of any department or agency, those in the same group or class of positions in one or more agencies within the particular department or agency wherein the reduction is to be effected, shall be reasonably compared in terms of relative fitness, efficiency and length of service, and those found to be least qualified for the remaining position shall be laid off. (Emphasis supplied). Sec. 14. The names of permanent employees laid off shall be entered in a reemployment list for the appropriate occupation. The list, arranged in the order of the employees' retention credit, shall be kept by the Department or agency where the reduction took place, and a copy thereof shall be furnished the Commission. The Commission shall certify for purposes of reemployment from such list as the opportunity for reemployment arises. It has been conceded that reduction in force due to lack of funds is a valid ground for terminating the services of an employee. But this, of course, is subject to some limitations. While the Governor of the Province of Agusan del Sur may take measures to retrench or reduce the work force yet this must be done in accordance with law and rules. As the plantilla schedule for the period of January to December 1988 would show, there are 106 employees in the provincial Engineering Office and out of these, 53 employees were terminated. There is no showing that these employees were compared in terms of relative fitness, efficiency and length of service. Thus, there is no basis in removing these employees except for the reason of lack of funds.

The manifest repugnance of the action taken by Governor Paredes, Jr. was further exacerbated by the issuance of the highly questionable Memorandum Order No. 3-A s. 1989 dated March 20, 1989. Said memorandum provides for the hiring of casuals under the facade of exigency of the public service. It was also a blatant violation of Section 14 of the Rules on Personnel Actions and Policies which succinctly states that the names of permanent employees laid off shall be entered in a reemployment list for the appropriate occupation. The list, arranged in the order of the employees' retention credit, shall be kept by the Department or agency where the reduction took place and copy thereof shall be furnished the Commission. They shall certify for purposes of reemployment from such list as the opportunity for reemployment arises. xxx xxx xxx Pursuant to a Motion for Clarification filed by petitioners, the MSPB issued an Order dated April 19, 1993 which directed the Provincial Government of Agusan del Sur pay petitioners their back salaries and other money benefits for the period that they had been out of the service until their reinstatement.3 In another motion dated May 24, 1993, petitioners sought an order directing the Provincial Government of Agusan del Sur to reinstate them and declare as invalid the appointments of those who replaced them. On June 24, 1993, the Provincial Governor of Agusan del Sur was ordered to reinstate the dismissed employees. 4 The Governor continued to refuse to implement the order to reinstate. Another motion was filed by petitioners and hence, an Order was issued by the MSPB on October 8, 1993, directing the Governor to show cause why he should not be declared in contempt. The matter was thereafter brought before the Civil Service Commission (CSC) which issued an Order dated December 14, 1993 directing the Governor to reinstate the employees with the caveat that should he fail to do so, the CSC would be constrained to initiate contempt proceedings against him and other responsible officials.5 As per its Resolution No. 94-1567 dated March 21, 1994, the CSC actually initiated indirect contempt proceedings against the Provincial Governor who was by then Democrito Plaza.6 This prompted Governor Plaza to comply, and herein petitioners were finally reinstated to their former positions. The difficulties of petitioners did not end, for on July 9, 1994, the Provincial Administrator, for and in behalf of Governor Plaza, wrote a letter 7 to respondent COA through the Provincial Auditor, inquiring on whether or not: 1. The MSPB Civil Service Commission decision directing the incumbent Provincial Governor, Agusan del Sur to pay back salaries and other benefits of the reinstated sixty one (61) PEO employees, illegally dismissed by the former Provincial Governor Ceferino S. Paredes Jr., is final and executory; 2. The Commission on Audit is the only proper authority to determine disbursement of such is in order; 3. The former Provincial Governor Ceferino S. Paredes, Jr., who perpetrated the illegal act of dismissing the 61 PEO employees, would be personally liable for payment of back salaries and other benefits. In the meantime, the Provincial Treasurer of Agusan del Sur made a partial payment to the reinstated employees on December 12, 1995, representing back salaries in the amount of P2,291,423.34.8 On July 2, 1996, respondent COA rendered its Decision No. 96-3519 holding as follows: As regards the first issue, suffice it to state that the order of payment of the back salaries and other benefits due the petitioners has become final and executory there being no appeal filed by the Provincial Government of Agusan del Sur within the reglementary period. Anent the issue on jurisdiction, the Supreme Court had occasion to rule in the case of Department of Agriculture vs. National Labor Relations Commission . . ., thus: Pursuant, however to C.A. No. 327, as amended by PD No. 1445, the money claim should first be brought to the Commission on Audit. The focal point of controversy in the case at bar is the issue as to whether or not subject claim for back salaries and other monetary benefits may be allowed in audit. As a general proposition, a public official is not entitled to any compensation if he has not rendered any service, and the justification for the payment of salary during the period of suspension is that the suspension was unjustified or that the official was innocent . . . . The Civil Service Commission, in Resolution No. 91-1739 dated January 29, 1993 ruled that there was illegal termination due to failure to comply with the provisions of Section 29 of Executive Order No. 292. The said Section 29, supra, provides that in case of reduction of force, those of the same group of positions shall be reasonably compared in terms of relative fitness, efficiency and length of service. As a consequence of the illegal termination of herein claimants, the Civil Service Commission ordered their reinstatement. It is a settled rule that when a government official has been illegally suspended or dismissed, and his reinstatement had been ordered, for all intents and purposes, he is considered as not having left his office, so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held . . .. Premises considered, This Commission sees no further legal impediment to the payment of the claims of Ms. Emmie Hurboda et al., of the Provincial Engineering Office, Province of Agusan del Sur, for back salaries and other monetary benefits in the total amount of P3,322,896.06 which has become the personal liability of former Governor Paredes, it appearing that the illegal dismissal was done in bad faith as clearly shown in the herein records. As a result, the Provincial Government of Agusan del Sur, through its Acting Provincial Treasurer, refused to release petitioners' remaining back salaries and other monetary benefits. A motion for reconsideration filed by petitioners was denied by respondent COA in its Decision No. 97-497 dated August 28, 1997. 10 In this special civil action for certiorari, petitioners raise the following assignment of errors:

(A) The Honorable Commission on Audit committed grave abuse of discretion tantamount to lack of jurisdiction when it promulgated Decision No. 97-497 on August 28, 1997 denying their motion for reconsideration and affirming its Decision No. 96-351, dated July 2, 1996 by ruling that payment of their back salaries and other money benefits became the personal liability of former Governor Ceferino Paredes Jr. and not of the Provincial Government of Agusan del Sur, after the Merit Systems Protection Board and the Civil Service Commission declared its decisions final and executory; (B) The Honorable Commission on Audit has no appellate authority to revise, amend and modify the final and partially executed decisions/orders of the Merit Systems Protection Board and the Civil Service Commission, being the same constitutional commission and co-equal with each other; (C) The decisions of the Merit Systems Protection Board and the Civil Service Commission have already been partially executed by the local government unit of the Province of Agusan del Sur by reinstating petitioners to their former positions in 1993 and partially paying their back wages in the amount of Two Million Two Hundred Ninety One Four Hundred Twenty Three and Thirty Four (P2,291,423.34) Pesos on December 12, 1995; and (D) The jurisprudence cited by public respondent in the case of Dumlao vs. CA, 114 SCRA 251; Salcedo vs. CA, 81 SCRA 408; and Correa vs. CFI of Bulacan, 92 SCRA 312 are not applicable in this case. The hinge issue is whether respondent COA, in the exercise of its power to audit, can disallow the payment of back wages of illegally dismissed employees by the Provincial Government of Agusan del Sur which has been decreed pursuant to a final decision of the Civil Service Commission. We hold that respondent COA is bereft of power to disallow the payment of petitioners' back wages. FIRST. The ruling of the respondent COA is based on its finding that bad faith attended the dismissal of petitioners. In arriving at this conclusion, respondent COA relied solely on the MSPB decision of January 29, 1993 holding that the dismissal was illegal because first, it was made in violation of Section 29 of EO 292 and Section 14 of the Rules on Personnel Action and Policies, and second, new casual employees were hired under the guise of exigency of the public service. A careful perusal of said Decision will disclose that the MSPB never made a categorical finding of fact that former Governor Paredes acted in bad faith and hence, is personally liable for the payment of petitioners' back wages. Indeed, the MSPB even found that there was lack of funds which would have justified the reduction in the workforce were it not for the procedural infirmities in its implementation. If the MSPB found bad faith on the part of Governor Paredes it would have categorically decreed his personal liability for the illegal dismissal of the petitioners. To be sure, even the petitioners did not proceed from the theory that their dismissal is the personal liability of Governor Paredes. Familiar learning is our ruling that bad faith cannot be presumed and he who alleges bad faith has the onus of proving it. 11 In the case at bar, the decision of the MSPB by itself does not meet the quantum of proof necessary to overcome the presumption of good faith. SECOND. The case at bar brings to the fore the parameters of the power of the respondent COA to decide administrative cases involving expenditure of public funds. 12 Undoubtedly, the exercise of this power involves the quasi-judicial aspect of government audit. As statutorily envisioned, this pertains to the "examination, audit, and settlement of all debts and claims of any sort due from or owing to the Government or any of its subdivisions, agencies and instrumentalities". 13 The process of government audit is adjudicative in nature. The decisions of COA presuppose an adjudicatory process involving the determination and resolution of opposing claims. Its work as adjudicator of money claims for or against the government means the exercise of judicial discretion. It includes the investigation, weighing of evidence, and resolving whether items should or should not be included, or as applied to claim, whether it should be allowed or disallowed in whole or in part. Its conclusions are not mere opinions but are decisions which may be elevated to the Supreme Court on certiorari by the aggrieved party. Accordingly, the fundamental requirements of procedural due process cannot be violated in proceedings before the COA. In the case at bar, former Governor Paredes was never made a party to nor served a notice of the proceedings before the COA. While administrative agencies exercising quasi-judicial powers are not hide bound by technical procedures, nonetheless, they are not free to disregard the basic demands of due process. 15 Notice to enable the other party to be heard and to present evidence is not a mere technicality or a trivial matter in any administrative proceedings but an indispensable ingredient of due process. 16 It would be unfair for COA to hold former Governor Paredes personally liable for the claims of petitioners amounting to millions of pesos without giving him an opportunity to be heard and present evidence in his defense. Our rulings holding that public officials are personally liable for damages arising from illegal acts done in bad faith are premised on said officials having been sued both in their official and personal capacities. THIRD. There is a further impediment in the exercise of the audit power of the respondent COA. The MSPB decision of January 29, 1993 became final and executory when the Provincial Government of Agusan del Sur failed to appeal within the reglementary period. To be sure, the decision has already been partially executed as the Acting Provincial Treasurer had paid petitioners some of their backwages. Again, our undeviating jurisprudence is that final judgments may no longer be reviewed or in any way modified directly or indirectly by a higher court, not even by the Supreme Court, much less by any other official, branch or department of Government. 18 Administrative decisions must end sometime as public policy demands that finality be written on controversies. 19 In the case at bar, the action taken by COA in disallowing the further payment by the Provincial Government of Agusan del Sur of backwages due the petitioners amended the final decision of the MSPB. The jurisdiction of the MSPB to render said decision is unquestionable. This decision cannot be categorized as void. Thus, we cannot allow the COA to set it aside in the exercise of its broad powers of audit. The audit authority of COA is intended to prevent irregular, unnecessary, excessive, extravagant or unconscionable expenditures, or uses of government funds and properties. 20 Payment of backwages to illegally dismissed government employees can hardly be described as irregular, unnecessary, excessive, extravagant or unconscionable. This is the reason why the Acting Provincial Treasurer, despite the pendency of his query with the COA, proceeded to release government funds in partial payment of the claims of petitioners. It cannot likewise be said that the MSPB gravely abused its discretion in failing to hold former Governor Paredes personally liable. In the first place, it is not clear whether the petitioners sued former Governor Paredes in his personal capacity. Indeed, they did not appeal the ruling of the MSPB which did not hold Governor Paredes personally liable for the payment of their back salaries. Moreover, jurisprudence exists that under exceptional circumstances public officials who acted in bad faith in the performance of their official duties were not held personally liable. 21 We are not unaware of our ruling in Aguinaldo v. Sandiganbayan, 22 that the conclusive effect of the finality of the COA's decision on the executive branch of the government relates solely to the administrative aspect of the matter. However, in the case at bar, the disallowance of the payment of backwages radically alters the MSPB decision which held the provincial government, not the provincial governor, personally liable. The COA decision affects not only the procedural, but more importantly the substantive rights of the parties. FOURTH. We subscribe to the time-honored doctrine that estoppel will not lie against the State. In the case of CIR v. CA, et al., 23 however, we held that "admittedly the government is not estopped from collecting taxes legally due because of mistakes or errors of its agents. But like other principles of law, this admits of exceptions in

the interest of justice and fair play, as where injustice will result to the taxpayer." In the case at bar, a stringent application of the rule exempting the state from the equitable principle of estoppel will prejudice petitioners who are lowly employees of government. Petitioners' sufferings started way back in 1988 when they were unceremoniously dismissed from the service. It took five years for the MSPB to decide in their favor. Still, they were not reinstated until the following year, and this only after several motions filed and orders issued to compel the concerned public officials to reinstate them. Then again, despite an Order issued as early as April 19, 1993 by the MSPB, the provincial government was able to pay petitioners, and even only partially at that, a good two and a half years after or on December 12, 1995. Now, after more than a decade, respondent COA holds that petitioners should run after Governor Paredes in his personal capacity to collect their claims. Worse, petitioners stand in danger of being made to reimburse what has been paid to them. Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law. 24 Rightly, we have stressed that social justice legislation, to be truly meaningful and rewarding to our workers, must not be hampered in its application by long-winded arbitration and litigation. Rights must be asserted and benefits received with the least inconvenience. 25 And the obligation to afford protection to labor is incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge into a living reality. 26 Social justice would be a meaningless term if an element of rigidity would be affixed to the procedural precepts. Flexibility should not be ruled out. Precisely, what is sought to be accomplished by such a fundamental principle expressly so declared by the Constitution is the effectiveness of the community's effort to assist the economically underprivileged. For under existing conditions, without such succor and support, they might not, unaided, be able to secure justice for themselves. To make them suffer, even inadvertently, from the effect of a judicial ruling, which perhaps they could not have anticipated when such deplorable result could be avoided, would be to disregard what the social justice concept stands for. 27 Be that as it may, the Provincial Government of Agusan del Sur is not without remedy against Governor Ceferino S. Paredes, Jr., if he indeed acted in bad faith. Subject to the usual defenses, the proper suit may be filed to recover whatever damages may have been suffered by the provincial government. WHEREFORE, the Orders of the respondent Commission on Audit dated July 2, 1996 and August 28, 1997 are SET ASIDE. 1wphi1.nt SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-17115 November 30, 1962

GUILLERMO B. GUEVARA, petitioner, vs. THE HONORABLE PEDRO M. GIMENEZ, as the Auditor General of the Philippines and ISMAEL MATHAY, as the Auditor of the Central Bank, respondents. Guillermo B. Guevara for and in his own behalf is petitioner. Office of the Solicitor General for respondents. CONCEPCION, J.: This is an original action for mandamus to compel respondents, Pedro M. Gimenez, as Auditor General of the Philippines, and Ismael Mathay, as Auditor of the Central Bank of the Philippines, hereafter referred to, respectively, as the Auditor General and the Bank Auditor, to approve and pass in audit two (2) bills of petitioner Guillermo B. Guevara for professional services rendered by him to said Bank. It is admitted that, on or about September 1, 1959, Miguel Cuaderno, the then Governor of the Central Bank of the Philippines thereafter referred to as the Central Bank acting for and in behalf thereof, asked petitioner herein, as member of the Philippine bar and practising lawyer, to cooperate with the legal counsel of the Central Bank in defending the same and its Monetary Board in Civil Case No. 41226 of the Court of First Instance of Manila, an action for certiorari, mandamus, quo warranto and damages in the amount of P574,000, filed against them by one R. Marino Corpus. Accordingly petitioner entered his appearance as counsel for the respondents in said case and argued therein, verbally and in writing, on September 1, 8, 12, 24 and 28, October 22 and November 9, 1959, January 7 and 14, and March 10 and 17, 1960, as well as submitted the following: 1. Motion to Dismiss, consisting of 16 pages filed September 5, 1959; 2. Motion to Dismiss the Amended Complaint, consisting of 2 pages, filed September 12, 1959, 3. Respondent's Rejoinder, consisting of all pages, filed October 11, 1959; 4. Additional Legal Arguments in support of Motion to Dismiss, consisting of 5 pages filed June 14, 1960. In pursuance of his authority, under Resolution No. 1283 of the Monetary Board, dated September 8, 1959, reading: The Governor presented to the Board, and the latter approved by unanimous vote, the designation of Judge Guillermo Guevara as counsel to collaborate with the Legal Counsel of the Central Bank in connection with the court action filed by Mr. R. Marino Corpus against the individual members of the Monetary Board and the Governor of the Central Bank of the Philippines. The Board also authorized the Governor to arrange with Judge Guevera the amount of fee which the latter will charge the Central Bank for handling the said cases. Governor Cuaderno urged petitioner herein to submit a proposal setting forth the terms and conditions under which his professional services were being rendered, and petitioner did so in a letter of September 11, 1959, in which he stated that his professional fees would be as follows: "retainer's fee of P10,000, plus a per diem of P300 for every hearing or trial. In precise of appeal to the Supreme Court, . . . another fee of P5,000.00". On the same date Governor Cuaderno accepted the proposal, as regards the retainer's fee and the per diem, effective as of the date of entry (September 1, 1959) of petitioner's appearance in said case. On June 14, 1960, the same was dismissed by the Court of First Instance of Manila, on motion of the respondents herein, represented by petitioner herein. Prior thereto, or on January 10, 1960, the latter had sent to the Central Bank his bill for the retainer's fee of P10,000. The Bank Auditor sought advise thereon from the Auditor General, who in a communication to the former, dated June 10, 1960. stated that he would not object to said retainer's fees of P10,000, provided that its payment was made "not in lump sum as causes or circumstances may arise which may prevent Judge Guevara from proceeding or continuing as counsel of the Bank in the aforesaid case before it is finally terminated", but, in installments, as follows: P3,000.00 after filing the answer to the petition; P3,000.00 after decision by the CFI; P2,000.00 after filing briefs in case of appeal; and P2,000.00 when the case is finally terminated. with the understanding that, "in case there is no appeal from the CFI decision, the balance will be paid in full", once, presumably, the decision has become final. As regards the P300 per diem, the Auditor General express however, the belief that it is "excessive and may be allowed in audit". Hence, the present action for mandamus filed on July 6, 1960, to compel respondent to approve payment of petitioner's retainer fee of P10,000 and his per diem aggregating P3,300, for the eleven (11) hearings attended by him. In their answer, respondents alleged that the sum P6,000 has already been paid on account of said retain fee and impugned the legality of petitioner's contract with the Central Bank, upon the ground that the latter has no authority to enter into said contract, and that its Monetary Board has no power to confirm it, because both can be and were represented in said case No. 41226 by the legal staff of the Central Bank, aside from fact that the Government has its corporate counsel, and because the

authority to engage special counsel for the Government of the Republic of the Philippines is vested, pursuant to section 1664 of the Revised Administrative Code, in the Solicitor General, with the approval of the Secretary of Justice. Respondents further alleged petitioner should have appealed from the action of respondents herein, instead of seeking a writ of mandamus. At the outset, we note that two (2) of the defenses set up by respondents herein are inconsistent with each other. On the one hand, they assail the legality of the contract between petitioner herein and the Central Bank, where as, on the other hand, they allege that the sum of P6,000 has already been paid on account of the retainer stipulated in said contract. That payment which could not have been made without the approval of respondent and/or their authorized representatives and the reliance placed thereon in respondents' answer constitute a partial performance of the aforementioned contract and a clear admission of its legality. Indeed, such implied admission is merely a reiteration of that made in the communication of the Auditor General to the Bank Auditor, dated June 10, 1960, expressing no objection to said retainer fee, on condition only that its payment be made in installments, as above indicated, and questioning the P300.00 per diem upon the sole ground that it is excessive. In fact, as early as September 19, 1959, the then secretary of Justice, Hon. Pedro Tuason, had rendered an opinion upholding the inherent power of the Central Bank to employ attorneys for any compensation, the Monetary Board may deem reasonable. The pertinent part of said opinion follows: This is in reply to your letter of the 20th instant asking me whether Judge Guillermo B. Guevara, who has been appointed special prosecutor under Section 1686 of the Revised Administration administrative Code 'to assist the City Fiscal of Manila in the investigation and prosecution of violations of the Central Bank Act and other related laws, including violations of circulars and regulations issued by the Monetary Board, Central Bank, and Department Heads relative to importations and exchange control', may be paid a monthly retainer by the Central Bank instead of per diems. The same Section 1686 regulates the compensation of special counsel appointed thereunder, limiting it to 'thirty pesos per day for the time employed'. But I am inclined to believe that this limitation applies to fees payable by the Department of Justice or other branches of the Government. Governed by a special charter and enjoying a distinct personality with a right to sue and be sued, the Central Bank may be regarded as a private party unaffected by the restrictions of said Section 1686 as to salary in the hiring of lawyers to protect the bank's interest and prosecute violations of the Central Bank Act and of the Bank's rules and regulations. The fact that such lawyers are appointed by the Secretary of Justice to better carry out the work for which they are retained does not alter the Central Bank's inherent power to employ attorneys for any compensation the Monetary Board deems reasonable. The cases of Angara vs. Gorospe, L-9230 (April 22, 1957) and Enriquez vs. Auditor General, L-2817 (April 29, 1960), cited by respondents are not in point. The first involved a city official, who by law was entitled to be represented by the city attorney, and the second referred to, a municipal corporation, which was entitled to be represented by the provincial fiscal. The aforementioned city official and municipal corporation are subject to the provisions of our Revised Administrative Code, whereas the Central Bank is governed by a special charter. Section 1664 of the Revised Administrative Code, upon which respondents rely, provide: The Solicitor General shall, when in his opinion the public interest requires it, upon approval of the Department Head, employ and retain in the name of the Government of the Republic of the Philippines such attorneys as he may deem necessary to assist him in the discharge of his duties. Such attorneys shall be entitled to travel expenses, if incurred, and such compensation as shall be stipulated for. This section refers to attorneys retained in the name of the Government of the Republic of the Philippines and deemed necessary by the Solicitor General to assist him in the discharge of his duties". Petitioner herein does not fall under this class, he having been retained in the name of the Central Bank, which has a personality distinct and separate from that of our Government. Moreover, he did not appear in case No. 41226 as representative of the Solicitor General. In fact, the latter did not participate or intervene in any manner whatsoever in said case. In short, petitioner's services were not engaged for the purpose of rendering any assistance to the Solicitor General. Said Section 1663 is, therefore, inapplicable to this case. It is urged that the proper remedy for petitioner herein is to appeal from the action of respondents herein, not to seek a writ of mandamus against them. It is well-settled, however, that when a contract has been made by an agency of the Government, through its proper officer, acting within the scope of his authority, and there is an appropriation made by law to cover the disbursements required by said contract, apart from the fact that delivery of the goods or rendition of the services stipulated has been duly attested to, the Auditor General or his representative has the duty, enforceable by mandamus to approve and pass in audit the voucher for said disbursements if issued by the proper officer of said agency of the Government. (Radiowealth vs. Agregado, 86 Phil. 429; Tan C. Tee & Co. vs. Wright, 53 Phil. 194; Inchausti & Co. vs. Wright, 47 Phil. 866.) Under our Constitution, the authority of the Auditor General, in connection with expenditures of the Government is limited to the auditing of expenditures of funds or property pertaining to, or held in trust by the Government or the provinces or municipalities thereof (Article XI, section 2, of the Constitution). Such function is limited to a determination of whether there is a law appropriating funds for a given purpose; whether a contract, made by the proper officer, has been entered into in conformity with said appropriation law; whether the goods or services covered by said contract have been delivered or rendered in pursuance of the provisions thereof, as attested to by the proper officer; and whether payment therefor has been authorized by the officials of the corresponding department or bureau. If these requirements have been fulfilled, it is the ministerial duty of the Auditor General to approve and pass in audit the voucher and treasury warrant for said payment. He has no discretion or authority to disapprove said payment upon the ground that the aforementioned contract was unwise or that the amount stipulated thereon is unreasonable. If he entertains such belief, he may do so more than discharge the duty imposed upon him by the Constitution (Article XI, section 2), "to bring to the attention of the proper administrative officer expenditures of funds or Property which, in his opinion, are irregular, unnecessary, excessive or extravagant". This duty implies a negation of the power to refuse and disapprove payment of such expenditures, for its disapproval, if he had authority therefor, would bring to the attention of the aforementioned administrative officer the reasons for the adverse action thus taken by the General Auditing office, and, hence, render the imposition of said duty unnecessary. WHEREFORE, the writ prayed for is granted and respondents herein are hereby ordered to pass in audit and approve the payment of the amounts claimed by petitioner herein, after deducting therefrom the sum of P6,000 already collected by him. It is so ordered.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 76044 June 28, 1988

ATTY. PRAXEDIO P. DINGCONG, petitioner, vs. HON. TEOFISTO T. GUINGONA, JR., Chairman, B. C. FERNANDEZ, JR., and COMMISSIONER EUFEMIO C. DOMINGO Commissioner, COMMISSION ON AUDIT Quezon City, respondents.

MELENCIO-HERRERA, J.: An appeal on certiorari seeking to annul and set aside the decision of respondent Commission on Audit (COA) in its 7th Indorsement of 1 September 1986 disallowing petitioner's claim for reimbursement of payments he had advanced for services rendered on "pakyao" basis in the renovation and improvement of the office of the Bureau of Treasury, Iloilo City. Petitioner, Atty. Praxedio P. Dingcong, was the former Acting Regional Director of Regional Office No. VI of the Bureau of Treasury in Iloilo City, until his retirement on 17 January 1984. On three occasionsJune 1982, September 1982 and February 1983 petitioner, after public bidding, contracted, admittedly on an "emergency labor basis," the services of one Rameses Layson, a private carpenter and electrician on "pakyao" basis for the renovation and improvement of the Bureau of Treasury Office, Iloilo City. Layson submitted the lowest bids so that the contracts were awarded to him, as follows:

Dates June, 1982 Sept., 1982 February 1983 Total

Contract Amount P 2,800.00 2,980.00 2 522 00 P 8,302.00

Working Days 17 days 44 days 35 days

Subsequently, Layson was hired as a casual employee in the Bureau of Treasury Office in order to do away with the hiring of a private carpenter and electrician. When petitioner retired on 17 January 1984, among the items disallowed by the Resident Auditor was the amount of P6,574.00 from the labor contracts with Layson, by reducing the latter's daily rate from P40.00 per day to P18.00 daily. Petitioner appealed to the Chairman of the Commission on Audit, who affirmed the disallowance as being "excessive and disadvantageous to the government," but increased Layson's daily rate to P25.00 thereby reducing the total amount disallowed to P4,276.00. Despite petitioner's request for reconsideration, respondent Commission remained unmoved, hence, the instant appeal. On 8 April 1987, we resolved to give due course to the petition and required the parties to submit their respective memoranda, which they have done. Petitioner assails the disallowance as invalid for being a usurpation of a management function and an impairment of contract. We reject petitioner's submission. Not only is the Commission on Audit (COA) vested with the power and authority, but it is also charged with the duty, to examine, audit and settle all accounts pertaining to ... the expenditures or uses of funds ... owned ... by, or pertaining to, the Government or any of its subdivisions, agencies, or instrumentalities (Article IX [D], Section 2 [1],1987 Constitution). That authority extends to the accounts of all persons respecting funds or properties received or held by them in an accountable capacity (Section 26, P. D. No. 1445). In the exercise of its jurisdiction, it determines whether or not the fiscal responsibility that rests directly with the head of the government agency has been properly and effectively discharged (Section 25[1], Ibid.), and whether or not there has been loss or wastage of government resources. It is also empowered to review and evaluate contracts (Section 18 [4], Ibid.). And, after an audit has been made, its auditors issue a certificate of settlement to each officer whose account has been audited and settled in whole or in part, stating the balances found due thereon and certified, and the charges or differences arising from the settlement by reason of disallowances, charges or suspensions (Section 82, Ibid.). Viewed in this light, the disallowance made by COA is neither illegal nor a usurpation of a management function. The authority of the petitioner, as agency head, to enter into a contract is not being curtailed. What COA maintains is that the "pakyao" contract has proved disadvantageous to the government. Addressing this issue now, the payments for the "pakyao" labor contract were disallowed on the ground that the cost of that contract was excessive and, therefore, disadvantageous to the government in that the rate applied by petitioner was P40.00/day when the prevailing rate at that time was only P25.00/day for casuals.

We find ourselves in disagreement. The labor contract entered into by petitioner was on the "pakyao" basis. On the other hand, the transaction was audited on a daily minimum wage rate basis. The result was that the emergency nature of the contract was overlooked, a different cost of labor for casuals was imposed, the assistance of two other carpenters who worked with Layson even on Saturdays was disregarded, and Layson's additional skill as an electrician and plumber was not adequately considered. Indeed, the criteria for a daily wage rate contract can hardly be applied to "pakyao" arrangements, the two being worlds apart. In "pakyao" a worker is paid by results. It is akin to a contract for a piece of work where-by the contractor binds himself to execute a piece of work for the employer, in consideration of a certain price or consideration. The contractor may either employ his labor or skill, or also furnish the material (Article 1713, Civil Code). Not so in a contract on a daily wage basis, where what is paid for is the labor alone. Under the "pakyao" system, payment is made in a lump sum; the laborer makes a profit for himself, which is justified by the fact that any loss would also be borne by him. On the other hand, no profit inures to the daily wage worker and no materials are furnished by him. The "pakyao" arrangement is not without its advantages. The tendency to dilly-dally on the work, generally experienced in a daily wage contract, is hardly present in labor on a "pakyao" basis. The latter can also be more flexible, with the need for supervision reduced to the minimum. It is not necessarily frowned upon. In fact; it is recognized in the Labor Code (Article 101), and even in the Revised Manual of Instructions to Treasurers, which provides that "except in construction or repairs requiring technical skill such as upon buildings, bridges, water works structures, culverts, etc., when the total cost of the work does not exceed P3,000.00, the same may be performed under the "pakyao" contract ..." (Section 750). In this case, each contract with Layson did not exceed P3,000.00. Recourse to a "pakyao" labor contract, therefore, is not necessarily disadvantageous. In this case, it was entered into only after public bidding pursuant to existing regulations through canvass among three qualified "bidders." Since Layson submitted the lowest price, each contract was awarded to him. The Court also notes that Layson was subsequently hired as a casual in the Bureau of Treasury Office in order to do away with the hiring of a carpenter and electrician, thereby exhibiting an awareness on petitioner's part of government interests and a positive effort to avail of cost-cutting options. WHEREFORE, the Decision of the Commission on Audit is hereby SET ASIDE, and it is hereby ordered to refund to petitioner the disallowed item of P4,276.00, which amount was deducted from his terminal leave voucher upon his retirement. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 101370 September 2, 1993.

NATIONAL HOUSING CORPORATION, Petitioner, vs. COMMISSION ON AUDIT and ARTURO D. DADUFALZA, in his capacity as COA Director, Technical Services Office, Respondents. DECISION PUNO, J.: Foreign loans usually obligate debtor country to hire expatriate consultants. This part of the package makes these loans more onerous. The petition at bar assails the disallowance by the respondent COA of a contract extending the services of a foreign consultant on the ground that his work could well be performed by Filipinos. It cannot succeed. There are no uncertainties on the facts of the case. Our government forged an agreement on financial cooperation with the Republic of Germany. On April 10, 1981, a Loan and Project Agreement was executed between the Republic of the Philippines as "Borrower" and the National Housing Authority (NHA) as "Project Sponsor" on the one hand, and the Kreditanstalt Fur Weideraufbau (KFW) on the other hand, for Urban Housing Dagat-Dagatan Project II A/B. (*1) The agreement empowered the NHA and the KFW to determine the details of the project as well as the goods and services to be financed from the loan. They hired the services of Engineer Brian W. Murdoch of Kinhill Pty. Ltd. (Kinhill), a foreign corporation organized under the laws of Australia.

In 1987, the KFW proposed to extend the contract of Engr. Murdoch for another year. The NHA Board of Directors approved only a 3-month extension, from March 9 to June 9, 1987. (*2) It also directed its management to make representations with KFW to replace Engr. Murdoch with a local consultant after June 9, 1987 if the project would still be unfinished. The 3-month consultancy contract was submitted to the National Economic Development Authority (NEDA) for approval. (*3) On April 1, 1987, NEDA approved the contract with the following observations: "This Office has no objection to the approval of the contract. His (NHA - General Manager) attention is called however on the previous observations made by this Office in the review of previous extension of services of Engr. Murdoch that Engr. Murdoch has been the consultant of NHA since August 1978 or about 8 years now and that considering the relatively simple supervision work required for the finishing stages of the Dagat-Dagatan Project, NHA should have considered hiring local consultant. It is expected that this extension of services of Engr. Murdoch is the last and that NHA shall make representations with KFW to substitute a qualified local consultant for Engr. Murdoch after expiration of the contract if a consultant for the project is still necessary." On April 10, 1987, NHA and Kinhill executed the consultancy contract (original) covering the months of March 9 to June 9, 1987. It involved the amount of US$30,800.00 (foreign cost) and P123,690.00 (local cost). The 3-month contract, however, did not satisfy KFW. It wanted a 12-month contract. In June 1987, it got what it wanted. NHA and Kinhill signed a First Supplemental Contract. It extended the consultancy contract for nine (9) more months from June 9, 1987 to March 8, 1988. Its total costs was US $85,500.00 (foreign cost) and P332,850.00 (local cost). The Urban Housing Dagat-Dagatan Project II was not completed as scheduled. On December 15, 1987, a request was made for an extension of the Loan Agreement for another year. KFW agreed provided the consultancy contract with Kinhill would be extended until the end of December 1988. NHA did not appear to have much choice. On May 8, 1988, it signed a Second Supplemental Contract extending the contract of Kinhill for another eight (8), from April 4 to December 4, 1988. Its total cost was US $78,500.00 (foreign) and P315,000.00 (local). The Loan Agreement was supposed to have expired on December 4, 1988. Nonetheless, there was another request for its extension for a period of six (6) months. KFW had no objection but again conditioned its approval on the extension of the consultancy services of Kinhill also for a period of six (6) months. This resulted in the signing on February 23, 1987 of the Third Supplemental Contract which extended Kinhill's consultancy services from January 4 to July 3, 1989. Its cost was US $58,200.00 (foreign) and P250,000.00 (local). NHA's legal difficulties started when the Third Supplemental Contract was reviewed in post audit by the Technical Services Office (TSO). The contract was disallowed in view of the following findings: "This has reference to the review of the Third Supplemental Contract dated February 23, 1989 involving the amount of US$58,200.00 (foreign cost) plus P250,000.00 (local cost) in the contract amount and covering an extension of six (6) months issued in favor of Kinhill Pty. Ltd. relative to the Consulting Services for Technical Assistance to National Housing Authority (NHA) under the Kreditanstalt Fuer Wiederaufbau (KFW) Loan for Dagat-Dagatan Project. "Please be informed that the Consultant's monthly rate was established as reasonable, however, the review conducted disclosed the following observations: a. Based on submitted documents, it was noted that this supplemental contract has no approval from KFW and the Secretary of Public Works and Highways as required in Article III, Paragraph 3.02 of the contract and Section 3 of Executive Order No. 164 dated May 5, 1987. b. The output requirements are not specified and there is no PERT/CPM (*4) Network Diagram or equivalent program of work, thus there is no clear basis for NHA's evaluation of the consultant's accomplishment for purposes of payment. (Note: Appendix "AA" only reflects objectives).

c. There is no contract provision for liquidated damages in case of delay in project completion attributed to direct fault of the consultant. "In addition we reiterate our opinion that the KFW components of the Dagat-Dagatan Project involves simple design and construction procedures and it being in its finishing stage, requires simple engineering advisory services that can be undertaken by NHA or DPWH in-house technical staff or at the most a local consultant. However, perusal of the documents submitted showed NHA was compelled to continue the consultancy services of Kinhill, otherwise, NHA cannot get reimbursement from the KFW loan to pay their contractors. (Underscoring supplied) "It was also noted that in this supplemental contract the Management did not take into consideration the results of our review made on the previous contracts contained in our Memorandum dated September 7, 1988. "In view of the above observation, it is recommended that the contract be disallowed in audit. "Likewise, it is informed that the review of the selection and the manner of award and the evaluation concerning all reimburseable direct expense of the consultant are left with the Auditor. "Attention is invited to the attached Consultancy Contract Review dated April 11, 1989, which is self-explanatory. "sgd. EDITHA A. DE LA CRUZ Assistant Commissioner Officer-in-Charge Technical Services Office" On November 26, 1990, NHA requested for reconsideration. It offered the following explanations: "ISSUE NO. 1 - This Supplemental Contract has no approval from KFW and the Secretary of the Public Works and Highways. "ANSWER: 1.1 - On KFW approval, attached for your reference is a copy of KFW telex of no objection, dated December 22, 1988 "EXHIBIT A." The reply, action of KFW is usually communicated thru telex. Perusal of all previous consultancy contracts would support this. Furthermore, let it be informed that it was KFW's requirement why this consultancy Contract was engaged despite our earlier manifestation that we hire local consultants "EXHIBIT B." 1.2 - On the approval by the Secretary of the Department of Public Works and Highways xxx the Third Supplemental Agreement was approved by the NHA Board under Resolution No. 1231(*5) of March 13, 1987 (sic) "EXHIBIT C." It may be pointed out at this juncture, that the main reason why the consultancy had to be extended was due to the delay in the completion of the KFW-Funded River Bank Improvement Works, which was directly implemented by the Department of Public Works and Highways, hence, the presence of the consultant was with the knowledge and acquiescence of the DPWH. "ISSUE NO. 2 - The output requirements are not specified ... or equivalent program of work ... thus there is no clear basis for ... payment. "ANSWER: In the original Consultancy Contract, as well as the First and the Second Supplemental Contract Agreements, the main basis for determining the consultant's responsibility have been defined in the Terms of Reference which specified the technical assistance to be provided by the Consultant to the National Housing Authority under the KFW Loan Agreement, to wit: Assistance to the National Housing Authority for the Dagat-Dagatan Project in the form of engineering designs, contract documentation, project programming, supervision and monitoring procedures, evaluation and concurrence on contractor's billings and institutional arrangements with regards associated agencies. In addition, responsibility will include all associated functions necessary for the timely and satisfactory completion of the revetment works along the river banks in which the Department of Public Works and Highways is the responsible agency. In this respect, since it is a prerequisite that all billings to be processed for payment to the contractors have to be certified by the consultant, it is the direct responsibility of the consultant to monitor, verify and evaluate all the aspects of the project implementation for contracts funded by KFW Loan This process will assure the NHA and KFW that disbursement are effected only to cover works accomplishment in accordance with plans and specifications. "ISSUE NO. 3 - There is no contract provision for liquidated damages in case of delay in project completion attributed to the fault of the consultant. "ANSWER: We reiterate in full our previous explanation for this particular observation: "It is confirmed that there is no contract provision for liquidated damages. However, there is a contract provision for termination for default or for convenience of NHA. Further, considering that the contract has already expired and there has been no record of consultant's faults or delays in the project implementation, the required provision on liquidated damages has become moot and academic." "With respect to your opinion that the KFW components of the Dagat-Dagatan involve simple design and construction procedures, etc., let this be of record that we are 100% in accord with your observation. However, the hiring of an expatriate consultant is mandated under the Loan Agreement to which NHA must adhere to, unless otherwise authorized." (Underscoring ours) On February 28, 1991, TSO Director Arthur Dadufalza denied the reconsideration. He opined: "1. Although not stated in the contract that there is no need for the approval of the DPWH Secretary, Section 3 of Executive Order No. 164 dated May 5, 1987 requires the said approval. "2. The consultant's responsibility which they mentioned, as specified in the Terms of Reference was general. The output requirements are not specified and there is no PERT/CPM Network Diagram or equivalent program of work, hence, we still believed that there is still no basis for NHA's evaluation of the consultant's accomplishments for purposes of payment. "3. It was confirmed by NHA that there is really no contract provision for liquidated damages. It so happened that the contract has expired and there has been no record of consultant's fault or delay, thus, the required provision may be considered moot and academic. However, it is recommended that for future projects, the provisions should be specified/stipulated. "4. The main reason for the disallowance is that there is no more need for a foreign consultant in the final project stage since the remaining work components of the Dagat-Dagatan Project which involved simple design and construction procedure and it being in the finishing stage, required simple advisory services that

can be undertaken by NHA or DPWH in-house technical staff or at the most, a local consultant. The findings was further reinforced by the statements of the NEDA in the attached 1st Indorsement dated April 1, 1987 xxx bearing on its no objection to the approval of the original contract: "xxx xxx xxx." "The NHA agreed and is 100% in accord with the observation. However, we do not find in the documents/records submitted that NHA has made stronger representation with the KFW for the hiring of a local consultant (or at all) as required by the NEDA." (Underscoring ours) On May 15, 1991, the COA, in its Decision No. 1895, affirmed Director Dadufalza's findings except as regards the lack of provision for liquidated damages which was considered moot and academic. NHA filed the instant petition for certiorari where it raises the following issues: "a. Whether or not the COA acted beyond its constitutionally granted powers by disallowing a duly entered contract, valid, regular, with all the formalities of law. "b. Corollary to the above, is whether or not COA acted beyond its constitutionally granted powers by disallowing a contract on the basis of its selfproclaimed and considered defects on the contract not otherwise provided for in its sets of regulations promulgated pursuant to the mandate of the Constitution. "c. Whether or not COA, by virtue of the powers granted to it under the Constitution, substitute its own judgment or disposition in lieu of the decision of the management or governing body of government entities." The petition lacks merit. The power of the Commission on Audit to audit and examine government expenditures is enshrined in Section 2 (1), Article IX-D of the 1987 Constitution, viz: "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 subdivision, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, or on a post audit basis: (a) constitutional bodies, commissions, and offices that have been granted the fiscal autonomy under this Constitution; xxx." The Constitution also granted to COA the power to "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."(*6) Pursuant to the said constitutional mandate, COA promulgated Circular No. 88-55-A dated September 8, 1985 defining the term "unnecessary" expenditures, viz: "The term pertains to expenditures which could not pass the test of prudence or the diligence of a good father of a family, thereby denoting nonresponsiveness to the exigencies of the service. Unnecessary expenditures are those not supportive of the implementation of the objectives and mission of the agency relative to the nature of its operation. This would also include incurrence of expenditure not dictated by the demands of good government, and those the utility of which cannot be ascertained at a specific time. An expenditure that is not essential or that which can be dispensed with without loss or damage to property is considered unnecessary. The mission and thrust of the agency incurring the expenditures must be considered in determining whether or not an expenditure is necessary." (Italics ours) In Caltex Philippines, Inc. v. COA, (*7) we recognized the authority of COA to disallow irregular, unnecessary, excessive, extravagant or unconscionable (IUEEU) expenditures. We ruled: "Since the COA is responsible for the enforcement of the rules and regulations, it goes without saying that failure to comply with them is a ground for disapproving the payment of the proposed expenditure." There can be no dispute on the proposition that the continued extension of the services of Engr. Murdoch as a foreign consultant constitutes at the very least an unnecessary expense. Crystal clear from the records is that the nature of the terminal phase of the Dagat-Dagatan project does not require the expertise of a foreign consultant. As early April 1, 1987, the necessity of extending the services of Engr. Murdoch has been questioned by NEDA "considering the relatively simple supervision work required for the final stages of the project."(*8) This observation was echoed by COA in its post audit review of the First and Second Supplemental Contracts, (*9) viz: "In addition, it is our opinion that the KFW components of the Dagat-Dagatan Project involves simple design and construction procedures, and it being in its finishing stage, requires simple advisory services that can be undertaken by NHA or DPWH in-house technical staff or at the most a local consultant. Hence, the NHA should have made stronger representations with the KFW for the hiring of a local consultant (or none at all) as required by NEDA." Petitioner itself has taken the position that the services of Engr. Murdoch can be dispensed with and can well be done by Filipinos. In 1987, petitioner's Board already directed its management to make representations with KFW to replace Engr. Murdoch with a Filipino consultant if the project would still be unfinished. Again, in its memorandum dated November 26, 1990, petitioner categorically admitted that the KFW components of the Dagat-Dagatan Project involved simple designs and construction procedures which could easily be handled by a local consultant. Despite all these admissions, petitioner proceeded to extend the unnecessary services of Engr. Murdoch as it consummated the disputed Third Supplemental Contract The amount of money that was spent for the unnecessary services of Engr. Murdoch speaks for itself. Petitioner argues that the renewal of the loan agreement with the KFW would have been jeopardized if it did not agree to the extension of the services of Engr. Murdoch. The short answer to this argument is that the imperative necessity to comply with the command of our Constitution prohibiting unnecessary expenses of public funds is beyond compromise. No amount of the almighty dollar can justify anybody, especially foreigners, to mangle the mandates of our fundamental law. The postulates of our Constitution are not mere platitudes which we should honor only in rhetorics but not in reality. In fine, the power to contract a foreign loan does not carry with it the authority to bargain away the ideals of our Constitution. IN VIEW WHEREOF, the petition for certiorari is dismissed. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. NO. 92279 June 18, 1992

EDMUNDO C. SAMBELI, doing business as ECS ENTERPRISES, Petitioners, vs. PROVINCE OF ISABELA, PROVINCIAL TREASURER OF ISABELA and COMMISSION ON AUDIT, Respondents.

DECISION PARAS, J.: The instant petition seeks to annul and set aside the ruling of respondent Commission on Audit (COA) affirming the action of respondent Provincial Auditor of Isabela which: "(a) withheld the payment to petitioner of the amount of P380,400.10, representing the unpaid balance of the price of 300 units of wheelbarrow and 873 pieces of shovel; (b) required the refund of the amount of P195,893.10 representing the overpayment to petitioner for the same items." (p. 35, Rollo). The pertinent background facts are uncontroverted. On October 2, 1987, an agreement was entered into by and between the Province of Isabela and ECS Enterprises, herein petitioner, for the purchase of 300 units of wheelbarrows, 837 pieces of shovels and 1 set of radio communication equipment. Out of the items to be delivered, a partial delivery of 150 units of wheelbarrows and 419 pieces of shovels were made on November 11, 1987 for the total price of P380,538.60. The Provincial Auditor allowed the payment of only 50% or P190,338.20 "pending receipt of the reply to the query to the Price Evaluation Division, COA, Technical Staff Office, Quezon City." (Annex 'N' Petition, p. 25 Rollo) A second delivery of 150 units of wheelbarrows and 418 pieces of shovels was made on December 1, 1987 and payment of P190,200.00 or 50% of P380,400.00 was allowed by the Provincial Auditor, bringing the total payments made to 380,538.20 or 50% of 761,077.20 (the total cost of 300 units of wheelbarrows and 837 pieces of shovels). Based on the findings of the Price Evaluation Division, COA Technical Service Office, Quezon City, the Provincial Auditor advised the Provincial Treasurer in his letter dated February 20, 1988 that an overprice in the total amount of P619,042.20 exists, out of the total price of P761,077.20 offered by ECS Enterprises or an overpayment of P195,893.10. The said findings of the Price Evaluation Division are hereinbelow quoted as follows: "A comparison between the purchase price of the Province and the findings of the Price Evaluation Division is presented hereunder showing the difference: Purchase Price Price "Item/ Description 1) 200 units, P1,768.00 2) 837 pcs. shovels Total 230.00 230,676.40 P761,076.40 Unit Price Total Hvs. Div. Unit Price Total Difference P320.00 P530,400.00 55.00 46,035.00 184,641.40 P142,035.00 P619,041.40

P96,000.00 P434,400.00

"Payment of Three Hundred Eighty Thousand Five Hundred Thirty Eight and 60/100 Pesos Only (P380,538.60) was made on the strength of the certification issued by the Bureau of Supply Coordination that the prices are reasonable. A difference of Two Hundred Thirty Eight Thousand Five Hundred Three and 60/100 PESOS Only (P238,503.60) between the amount paid of Three Hundred Eighty Thousand Five Hundred Thirty Eight and 60/100 Pesos Only (P380,538.60) and the total price due if computed on the Price Evaluation Division canvass Manila Price of One Hundred Forty Two Thousand Thirty Five and 00/100 Pesos Only (P142,035.00). "If thirty percent (30%) equivalent to Forty Two Thousand Six Hundred Ten and 50/100 (P42,610.50) of the Manila Price total will be allowed for handling and freight expenses to be deducted from P238,503.60, still an overpayment of One Hundred Ninety Five Thousand Eight Hundred Ninety Three and 10/100 Pesos Only (P195,893.10) still exists. "It is recommended that future claims of ECS Enterprises be withheld and applied to the refund for overpayment." (Annex J. Petition, pp. 122-124, Rollo) The President/General Manager of ECS Enterprises in his letter dated April 1, 1988 to the Provincial Treasurer made no comment on the overpricing but instead proposed a 10% deduction on the unpaid balance. The Provincial Auditor forwarded the matter to the COA Regional Director who formally endorsed the stand of the Provincial Auditor, as follows: "In view of the foregoing, we favorably endorse the stand of the Provincial Auditor in his letter to the Provincial Treasurer Ilagan, Isabela that the total claim of ECS Enterprises in the total amount of P761,077.20 is overpriced by P619,041.40 or a refund of P195,893.10 must be made by the supplier out of the P380,538.60 total payments already made by the Province of Isabela as presented by the Provincial Auditor in the preceding indorsement." (Annex N, Petition: p. 125, Rollo) The Regional Director further made the following findings: "the submitted documents disclosed the following deficiencies:

"1. Thecontract for the purchase of 300 units of wheelbarrows and 837 pieces of shovels was entered into by and between the Province of Isabela and ECS Enterprises without the prior necessity of a public bidding to determine the most advantageous prices; "2. The following conditions among others, set in the 2nd indorsement dated December 10, 1987 of Mr. David Rubio, Director, Supply Coordination Office to the Provincial Governor, Ilagan, Isabela were not adhered to: - (a) the agency concerned shall negotiate further for lower prices such terms and conditions advantageous to the government; and - (b) substitute offer/s at lower prices shall be given due consideration upon appreciation of their quality and effectiveness.'" (p. 26, Rollo) ECS Enterprises appealed to the respondent Commission on Audit. In a letter dated December 12, 1989, the said Commission denied the appeal and affirmed the position of the Provincial Auditor and the COA Regional Director, as follows: "This has reference to your in behalf of ECS Enterprises from the action of the Provincial Auditor of Isabela in withholding the payment of P380,400.60 representing the unpaid balance of the price of 300 units of wheelbarrows and 837 pieces of shovels purchased by the Province of Isabela from your Company. "Relative thereto, we invite your attention to the letter of this Commission to then Governor Melanio T. Singson of Isabela, dated August 3, 1988, copy attached, confirming the action taken by the Provincial Auditor in demanding the refund of the excess payment made by the Provincial Treasurer of Isabela to your Company for the reasons stated therein. "Upon a circumspect evaluation of the grounds relied upon, your within appeal, this Commission finds the same to be devoid of any merit. The price quotation of the Supply Coordination Office provides that the prices set therein are authorized ceiling or purchasing prices. It can be deduced therefrom that the prices to be agreed upon shall not exceed said amount, thereby signifying that negotiations for a lower price may be resorted to in the best interest of the government. Moreover, the action taken by the Provincial Auditor and the COA Regional Director, as representatives of the Commission on Audit, is in accordance with the law and in pursuance of the mandate of the Constitution which vests in this Commission the exclusive authority to 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.'" (Art. IX- D, Sec. 2 (2) 1987 Constitution). "Accordingly, this Commission regrets to dismiss, as it hereby dismisses, your herein appeal for lack of merit." (Annex R, Petition, pp. 126-127, Rollo) Hence, the present petition. Petitioner assails the ruling of the COA as not valid. It contends that the contract of sale has not only been perfected between the Province of Isabela and petitioner but delivery has been made by it with the corresponding partial payment by the Province of Isabela. Thus, it is allegedly incumbent upon COA to authorize the payment of the balance because to act otherwise will constitute an impairment of contract. We reject petitioner's contention. In the exercise of the regulatory power vested upon it by the Constitution, the Commission on Audit adheres to the policy that government funds and property should be fully protected and conserved and that irregular, unnecessary, excessive or extravagant expenditures or uses of such funds and property should be prevented. On the proposition that improper or wasteful spending of public funds or immoral use of government property, for being highly irregular or unnecessary, or scandalously excessive or extravagant, offends the sovereign people's will, it behooves the Commission on Audit to put a stop thereto. (Tantuico, State Audit Code Philippines, p. 235) In the cases of Danville Maritime, Inc. v. Commission on Audit, 175 SCRA 701 (1989) and D.M. Consunji, Inc. v. Commission on Audit, 199 SCRA 549 (1991). We defined the role of the COA in this wise: "x x x No less than the Constitution has ordained that the COA shall have exclusive authority 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 use of government funds and properties." (Art. IX D, Sec. 2(2) 1987 Constitution of the Philippines) (underscoring supplied) Indeed, not only is the Commission on Audit (COA) vested with the power and authority, but is also charged with the duty to examine, audit and settle all accounts pertaining to x x x the expenditure or uses of funds x x x owned by, or pertaining to, the Government or any of its subdivisions, agencies or instrumentalities (Article IX (D-1) Section 2(1), 1987 Constitution). That authority extends to the accounts of all persons respecting funds or properties received or held by them in any accountable capacity. (Section 26, P.D. No. 1445). In the exercise of its jurisdiction, it determines whether or not the fiscal responsibility that rests directly with the head of the government agency has been properly and effectively discharged (Section 25 (1) ibid), and whether or not there has been loss or wastage of government resources. It is also empowered to review and evaluate contracts. (Section 18 (4), ibid). And, after an audit has been made, its auditors issue a certificate of settlement to each officer whose account has been audited and settled in whole or in part, stating the balances found due thereon and certified, and the charges or differences arising from the settlement by reason of disallowances, charges or suspensions. Sec. 82, ibid.) (Dingcong v. Guingona 162 SCRA 782) VIEWED in this light, the disallowance made by the respondent Commission on Audit is not without any Constitutional and legal basis. We, therefore, affirm the same. WHEREFORE, for lack of merit, the petition is DISMISSED. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 88435 January 16, 2002

DEVELOPMENT BANK OF THE PHILIPPINES, JESUS P. ESTANISLAO, DOLORES A. SANTIAGO, LYNN H. CATUNCAN, NORMA O. TERREL, MA. ANTONIA G. REBUENO, petitioners, vs. COMMISSION ON AUDIT, respondent. CARPIO, J.: The Case This is a petition for review on certiorari1 of the letter-decision of the Chairman of the Commission on Audit2 ("COA" for brevity) and the letter-decision of the COA en banc3, prohibiting the Development Bank of the Philippines ("DBP" for brevity) from hiring a private external auditor. This petition raises a question of first impression, whether or not the constitutional power of the COA to examine and audit the DBP is exclusive and precludes a concurrent audit of the DBP by a private external auditor. The Antecedent Facts In 1986, the Philippine government, under the administration of then President Corazon C. Aquino, obtained from the World Bank an Economic Recovery Loan ("ERL" for brevity) in the amount of US$310 million. The ERL was intended to support the recovery of the Philippine economy, at that time suffering severely from the financial crisis that hit the country during the latter part of the Marcos regime. As a condition for granting the loan, the World Bank required the Philippine government to rehabilitate the DBP which was then saddled with huge non-performing loans. Accordingly, the government committed to rehabilitate the DBP to make it a viable and self-sustaining financial institution in recognition of its developmental role in the economy. The DBP was expected to continue "providing principally medium and long-term financing to projects with risks higher than the private sector may be willing to accept under reasonable terms."4 The government's commitment was embodied in the Policy Statement for the Development Bank of the Philippines which stated in part: "4. Furthermore, like all financial institutions under Central Bank supervision, DBP will now be required to have a private external audit, and its Board of Directors will now be opened to adequate private sector representation. It is hoped that with these commitments, DBP can avoid the difficulties of the past and can function as a competitive and viable financial institution within the Philippine financial system."5 (Emphasis supplied) On November 28, 1986, the Monetary Board adopted Resolution No. 1079 amending the Central Bank's Manual of Regulations for Banks and other Financial Intermediaries, in line with the government's commitment to the World Bank to require a private external auditor for DBP. Thus, on December 5, 1986, the Central Bank Governor issued Central Bank Circular No. 1124, providing that: "SECTION 1. Subsection 1165.5 (Book I) is amended to read as follows: 1165.5 Financial Audit. - Each Bank, whether Government-owned or controlled or private, shall cause an annual financial audit to be conducted by an external independent auditor not later than thirty (30) days after the close of the calendar year or the fiscal year adopted by the bank. x x x. x x x The Audit of a Government-owned or controlled bank by an external independent auditor shall be in addition to and without prejudice to that conducted by the Commission on Audit in the discharge of its mandate under existing law. x x x. xxx "SECTION 3. The requirement for an annual financial audit by an external independent auditor shall extend to specialized and unique government banks such as the Land Bank of the Philippines and the Development Bank of the Philippines." 6 On December 12, 1986, pursuant to Central Bank Circular No. 1124 and the government's commitment to the World Bank, DBP Chairman Jesus Estanislao wrote the COA seeking approval of the DBP's engagement of a private external auditor in addition to the COA. 7 On January 2, 1987, to formalize its request for the ERL, the Philippine government sent the World Bank a letter assuring the World Bank that pursuant to Central Bank Circular No. 1124, "all Banks, including government banks, shall be fully audited by external independent auditors x x x in addition to that provided by the Commission on Audit." The letter was signed by the Central Bank Governor and the Ministers of Finance, Trade and Industry, and Economic Planning of the Philippine government.8 On January 8, 1987, the Philippine government and World Bank negotiating panels reached final agreement on the private audit of the DBP, as follows: "13. With respect to the draft Policy Statement, it was agreed that Sections 4, 7 and 11 would be amended as follows:

x x x (iii) Section 11 should in line with the letter of Development Policy, confirm that the external independent audits would commence with a balance sheet audit as of December 31, 1986 and a full financial audit, including income statements, starting with the period July 1 to December 31, 1986. A copy of COA's letter (referred to in par. 1, a draft of which is attached as Annex VIII) regarding DBP's appointment of a private external auditor will be sent to the Bank before the distribution of the loan documents to the Bank's Board, along with a copy of the scope of audit as approved by COA and satisfactory to the Bank. With regard to the scope of the audit to be undertaken by the private external auditors, the terms of reference which will be issued to the selected auditors should be generally consistent with the attached model terms of reference for financial audits (Annex IX). These general terms of reference were discussed during negotiations and form a part of the World Bank's guidelines for financial information on financial institutions."9 On January 20, 1987, then COA Chairman Teofisto Guingona, Jr. replied to the December 12, 1986 letter of the DBP Chairman. The COA Chairman's reply stated that: "x x x the Commission on Audit (COA) will interpose no objection to your engagement of a private external auditor as required by the Economic Recovery Program Loan Agreements of 1987 provided that the terms for said audit are first reviewed and approved by the Commission." 10 The following day, the COA Chairman also informed the Consultant of the Central Bank that the COA interposed no objection to the proposed scope of audit services to be undertaken by the private external auditors to be engaged by the DBP.11 On February 18, 1987, the Board of Directors of the DBP approved the hiring of Joaquin Cunanan & Co. as the DBP's private external auditor for calendar year 1986 as required by Central Bank Circular No. 1124 and the World Bank. The DBP Board of Directors placed a ceiling on the amount of reimbursable out-of-pocket expenses that could be charged by the private auditor.12 On February 23, 1987, the World Bank President, in his Report to the Bank's Executive Directors on the Philippine government's application for the ERL, certified that the Philippine government was complying with the requirement of a private external auditor. The World Bank President's certification stated that: "74. Accounting and Auditing. All banks both government and private are now subject to accounting and auditing standards as established by the Central Bank. To ensure full public accountability, the Monetary Board now requires that all government banks be subject to annual audits by independent private auditing firms, in addition to those normally undertaken by the Government's Commission on Audit. DBP and PNB have already selected private auditors, and audited accounts for 1986 and 1987 will be a requirement for the releases of the second and third tranches, respectively, of the ERL."13 However, a change in the leadership of the COA suddenly reversed the course of events. On April 27, 1987, the new COA Chairman, Eufemio Domingo, wrote the Central Bank Governor protesting the Central Bank's issuance of Circular No. 1124 which allegedly encroached upon the COA's constitutional and statutory power to audit government agencies. The COA Chairman's letter informed the Governor that: "This Commission hereby registers its strong objection to that portion of the CBP Circular No. 1124 which requires government banks to engage private auditors in addition to that conducted by the Commission on Audit, and urges the immediate amendment thereof. It is the position of this Commission that the said requirement: (a) infringes on Article IX-D of the Philippine Constitution; (b) violates Section 26 and 32 of the Government Auditing Code of the Philippines; (c) exposes the financial programs and strategies of the Philippine Government to high security risks; (d) allows the unnecessary and unconscionable expenditure of government funds; and (e) encourages unethical encroachment among professionals." 14 On May 13, 1987, after learning that the DBP had signed a contract with a private auditing firm for calendar year 1986, the new COA Chairman wrote the DBP Chairman that the COA resident auditors were under instructions to disallow any payment to the private auditor whose services were unconstitutional, illegal and unnecessary.15 On July 1, 1987, the DBP Chairman sent to the COA Chairman a copy of the DBP's contract with Joaquin Cunanan & Co., signed four months earlier on March 5, 1987. The DBP Chairman's covering handwritten note sought the COA's concurrence to the contract. 16 During the pendency of the DBP Chairman's note-request for concurrence, the DBP paid the billings of the private auditor in the total amount of P487,321.14 17 despite the objection of the COA. On October 30, 1987, the COA Chairman issued a Memorandum disallowing the payments, and holding the following persons personally liable for such payment: "SVP Fajardo who approved the voucher for payment; VP Santiago who certified that the expenditure was authorized, necessary and lawful; SM Terrel, Catuncan and Rebueno who signed the checks; and the head of office who signed the contract and who is immediately and primarily responsible for the funds of the Bank."18 On January 19, 1988, the DBP Chairman wrote the COA Chairman seeking reconsideration of the COA Chairman's Memorandum. 19 However, the DBP received no response until August 29, 1988 when the COA Chairman issued a letter-decision denying petitioner's July 1, 1987 note-request for concurrence. The letter-decision, one of the two COA decisions assailed in this petition, declared in part as follows: "(a) In the letter to the Central Bank Governor x x x, this Commission clearly stated its non-negotiable stand on the issue in the following terms: ' x x x the very essence of the Commission on Audit as an independent constitutional commission in the total scheme of Government, is its singular function to '[E]xamine, audit, and settle x x x all accounts pertaining to x x x the Government, or any of its subdivisions, x x x including government-owned or controlled corporations.' To allow private firms to interfere in this governmental audit domain would be to derogate the Constitutional supremacy of State audit as the Government's guardian of the people's treasury, and as the prime advocate of economy in the use of government resources.' xxx

"(c) In the letter to the Secretary of Finance dated January 28, 1988 x x x, this Commission maintains: 1. 'COA is in no way prepared to permit 'use of private auditors' except insofar as the law allows, which is 'to deputize and retain in the name of the Commission such certified public accountants and other licensed professionals not in the public service as it may deem necessary to assist government auditors in undertaking specialized audit engagements' (Sec. 31, PD No 1445). Outside of this, the Commission does not consider the matter of hiring private auditing firms a negotiable matter, and this we want to emphasize to avoid future embarrassment to the Government. The Commission on Audit is a constitutionally-created independent and separate body, and neither Congress nor the Executive Department has the power to detract from its mandated duties, functions, and powers. 2. 'Since the proceeds of the proposed loan accrue to the Republic of the Philippines as borrower, it follows that its accounting and audit must comply with the laws of this country. To specify in the Loan Agreement that the loan account, once released to the Government, shall be 'audited by independent auditors acceptable to the Bank' is not only to entirely by-pass this Commission but to ignore as well the Constitution and the laws of this country which vests in this Commission 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 x x x pertaining to the Government.' (Sec. 2, Art. IX-D, Phil. Const.).1wphi1.nt 'Such brazen disregard of the fundamental law of this country cannot be countenanced by this Commission.' "In view of all the foregoing, you are hereby advised: "1. To desist from proceeding with the audit of Joaquin Cunanan & Co. of the Bank's financial statements for the year ending December 31, 1987. "2. To refrain from making any payments out of the funds of the Development Bank of the Philippines, in the event that such audit services have already been rendered, attention being invited to the following provisions of the Government Auditing Code of the Philippines: 'Sec. 108. General liability for unlawful expenditures 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 therefore.' "3. To restitute, within thirty (30) days from receipt hereof, the total amount of P513,549.24 under CV Nos. 9136, 5014, 6201 and 4082 for professional services rendered in the audit of the 1986 financial operations of the Bank. Pursuant to the aforequoted provisions of law, such unlawful expenditure is the personal liability of the official directly responsible therefore. "Please be guided accordingly."20 On September 26, 1988, the DBP Chairman appealed the letter-decision to the COA en banc. On May 20, 1989, the COA en banc, in a letter-decision, denied the DBP's appeal. This letter-decision, now also assailed by the DBP, held that: "Upon a circumspect evaluation of the grounds upon which your instant request is predicated, this Commission finds the same to be devoid of merit. As hereunder demonstrated, the justifications offered do not inspire rational belief in the mind of this Commission. "First, it bears stress that CB Circular No. 1124, series of 1986, which has earlier been shown to be constitutionally and legally infirm, cannot by any means possess any binding and conclusive effect upon this Commission and, hence, may not be properly invoked in support of the instant appeal. "Secondly, it was not the International Bank for Reconstruction and Development which required the audit of government banks by private auditing firm, but the Central Bank itself. "Thirdly, insofar as this Commission is concerned, PD 2029 is an anachronism of sorts if viewed in the light of the present Constitution recognizing this Commission as the supreme and exclusive audit institution of the government. This is necessarily implicit from the bare language of Section 2(1), Article IX-D thereof which, despite the absence of the qualifying adjective "exclusive" that anyway would be a surplusage, ought to be reasonably construed as vesting in this Commission the "power, authority, and duty" to audit all government accounts to the exclusion of any other person or entity, whether in the public or the private sector. Expressio unius est exclusio alterius. A contrary interpretation, such as that being pressed upon this Commission, would reduce this constitutional ordinance to an absurdity (reductio ad absurdum) as it thereby would give rise to the rather confusing spectacle, as it were, of a government agency or corporation being audited not only by this Commission but also and in addition thereto by one or two or several private accounting firms certainly a situation never intended by the framers of the Constitution. "Lastly, while this Commission has not lost sight of the letter of then COA Chairman Guingona, Jr. to the DBP Chairman, dated January 20, 1987, it has opted to be guided and influenced by the more persuasive and controlling COA Circular No. 860254 dated March 24, 1986, which in categorical and precise terms ordained that: 'Accordingly, by way of reassertion and reaffirmation of its primary audit jurisdiction, as herein above defined, the Commission on Audit hereby issues the following directives: 1. Any ongoing audit of a government-owned and/or controlled corporation or any of its subsidiaries or corporate offsprings being conducted by a private auditor or accounting firm shall cease and terminate on April 15, 1986. Henceforth, from and after said date, the audit of said corporate entity shall be undertaken solely and exclusively by the Commission on Audit. x x x.' "Premises considered, it is regretted that your instant request for reconsideration has to be, as it is hereby, denied."21

Hence, on June 14, 1989 the DBP filed this petition for review with prayer for a temporary restraining order, assailing the two COA letter-decisions for being contrary to the Constitution and existing laws. On June 15, 1989 this Court issued a temporary restraining order directing the COA to cease and desist from enforcing its challenged letter-decisions. The Office of the Solicitor General, in a Manifestation dated October 18, 1989, declined to appear on behalf of the COA on the ground that the Solicitor General was "taking a position adverse to that of the COA." Consequently, a private counsel on pro bono basis represented the COA. The Issues The DBP's petition raises the following issues: 1. Does the Constitution vest in the COA the sole and exclusive power to examine and audit government banks so as to prohibit concurrent audit by private external auditors under any circumstance? 2. Is there an existing statute that prohibits government banks from hiring private auditors in addition to the COA? If there is none, is there an existing statute that authorizes government banks to hire private auditors in addition to the COA? 3. If there is no legal impediment to the hiring by government banks of a private auditor, was the hiring by the DBP of a private auditor in the case at bar necessary, and were the fees paid by DBP to the private auditor reasonable, under the circumstances? The Court's Ruling The DBP's petition is meritorious. First Issue: Power of COA to Audit under the Constitution The resolution of the primordial issue of whether or not the COA has the sole and exclusive power to examine and audit government banks involves an interpretation of Section 2, Article IX-D of the 1987 Constitution. This Section provides as follows: "Sec. 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 and held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, x x x. "(2) The Commission shall have the exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefore, 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." (Emphasis supplied) The COA vigorously asserts that under the first paragraph of Section 2, the COA enjoys the sole and exclusive power to examine and audit all government agencies, including the DBP. The COA contends this is similar to its sole and exclusive authority, under the second paragraph of the same Section, to define the scope of its audit, promulgate auditing rules and regulations, including rules on the disallowance of unnecessary expenditures of government agencies. The bare language of Section 2, however, shows that the COA's power under the first paragraph is not declared exclusive, while its authority under the second paragraph is expressly declared "exclusive." There is a significant reason for this marked difference in language. During the deliberations of the Constitutional Commission, Commissioner Serafin Guingona proposed the addition of the word "exclusive" in the first paragraph of Section 2, thereby granting the COA the sole and exclusive power to examine and audit all government agencies. However, the Constitutional Commission rejected the addition of the word "exclusive" in the first paragraph of Section 2 and Guingona was forced to withdraw his proposal. Commissioner Christian Monsod explained the rejection in this manner: "MR. MONSOD. Earlier Commissioner Guingona, in withdrawing his amendment to add "EXCLUSIVE" made a statement about the preponderant right of COA. "For the record, we would like to clarify the reason for not including the word. First, we do not want an Article that would constitute a disincentive or an obstacle to private investment. There are government institutions with private investments in them, and some of these investors - Filipinos, as well as in some cases, foreigners - require the presence of private auditing firms, not exclusively, but concurrently. So this does not take away the power of the Commission on Audit. Second, there are certain instances where private auditing may be required, like the listing in the stock exchange. In other words, we do not want this provision to be an unnecessary obstacle to privatization of these companies or attraction of investments." 22 (Emphasis supplied) Shortly thereafter, Commissioner Guingona attempted to resurrect his amendment by proposing the following provision: "Private auditing firms may not examine or audit 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." 23 Guingona argued that a private audit in addition to the COA audit would be a useless duplication and an unnecessary expense on the part of government. The Constitutional Commission also rejected this proposed provision, after Commissioner Monsod made the following explanation: "MR. MONSOD. x x x But it is also a fact that even government agencies, instrumentalities and subdivisions sometimes borrow money from abroad. And if we are at all going to preclude the possibility of any concurrent auditing, if that is required, and insist that it is only exclusively the government which can

audit, we may be unnecessarily tying their hands without really accomplishing much more than what we want. As long as the COA is there, and the COA's power cannot be eliminated by law, by decree or anything of that sort, then the government funds are protected. As far as the question of fees is concerned, this is always negotiable. Besides, if one talks about auditing fees, these are governed by certain regulations within the auditing profession, beyond which auditing firms cannot go. Furthermore, the government can always refuse to pay unconscionable fees. So, that matter really is not that relevant. But I think what we want to insist on is that there should be some flexibility so that a procedural requirement does not impede a substantive transaction as long as COA is there."24 (Emphasis supplied) The rejection of Guingona's second proposal put an end to all efforts to grant the COA the sole and exclusive power to examine and audit government agencies. In sharp contrast, the Constitutional Commission placed the word "exclusive" to qualify the authority of the COA under the second paragraph of the same Section 2. The word "exclusive" did not appear in the counterpart provisions of Section 2 in the 1935 and 1973 Constitutions. 25 There is no dispute that the COA's authority under the second paragraph of Section 2 is exclusive as the language of the Constitution admits of no other meaning. Thus, the COA has the exclusive authority to decide on disallowances of unnecessary government expenditures. Other government agencies and their officials, as well as private auditors engaged by them, cannot in any way intrude into this exclusive function of the COA. The qualifying word "exclusive" in the second paragraph of Section 2 cannot be applied to the first paragraph which is another sub-section of Section 2. A qualifying word is intended to refer only to the phrase to which it is immediately associated, and not to a phrase distantly located in another paragraph or sub-section.26 Thus, the first paragraph of Section 2 must be read the way it appears, without the word "exclusive", signifying that non-COA auditors can also examine and audit government agencies. Besides, the framers of the Constitution intentionally omitted the word "exclusive" in the first paragraph of Section 2 precisely to allow concurrent audit by private external auditors. The clear and unmistakable conclusion from a reading of the entire Section 2 is that the COA's power to examine and audit is non-exclusive. On the other hand, the COA's authority to define the scope of its audit, promulgate auditing rules and regulations, and disallow unnecessary expenditures is exclusive. Moreover, as the constitutionally mandated auditor of all government agencies, the COA's findings and conclusions necessarily prevail over those of private auditors, at least insofar as government agencies and officials are concerned. The superiority or preponderance of the COA audit over private audit can be gleaned from the records of the Constitutional Commission, as follows: "MR. GUINGONA. Madam President, after consultation with the honorable members of the Committee, I have amended my proposed amendment by deleting the word EXCLUSIVE because I was made to understand that the Commission on Audit will still have the preponderant power and authority to examine, audit and settle."27 (Emphasis supplied) The findings and conclusions of the private auditor may guide private investors or creditors who require such private audit. Government agencies and officials, however, remain bound by the findings and conclusions of the COA, whether the matter falls under the first or second paragraph of Section 2, unless of course such findings and conclusions are modified or reversed by the courts. The power of the COA to examine and audit government agencies, while non-exclusive, cannot be taken away from the COA. Section 3, Article IX-D of the Constitution mandates that: "Sec. 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatsoever, or any investment of public funds, from the jurisdiction of the Commission on Audit." The mere fact that private auditors may audit government agencies does not divest the COA of its power to examine and audit the same government agencies. The COA is neither by-passed nor ignored since even with a private audit the COA will still conduct its usual examination and audit, and its findings and conclusions will still bind government agencies and their officials. A concurrent private audit poses no danger whatsoever of public funds or assets escaping the usual scrutiny of a COA audit. Manifestly, the express language of the Constitution, and the clear intent of its framers, point to only one indubitable conclusion - the COA does not have the exclusive power to examine and audit government agencies. The framers of the Constitution were fully aware of the need to allow independent private audit of certain government agencies in addition to the COA audit, as when there is a private investment in a government-controlled corporation, or when a government corporation is privatized or publicly listed, or as in the case at bar when the government borrows money from abroad. In these instances the government enters the marketplace and competes with the rest of the world in attracting investments or loans. To succeed, the government must abide with the reasonable business practices of the marketplace. Otherwise no investor or creditor will do business with the government, frustrating government efforts to attract investments or secure loans that may be critical to stimulate moribund industries or resuscitate a badly shattered national economy as in the case at bar. By design the Constitution is flexible enough to meet these exigencies. Any attempt to nullify this flexibility in the instances mentioned, or in similar instances, will be ultra vires, in the absence of a statute limiting or removing such flexibility. The deliberations of the Constitutional Commission reveal eloquently the intent of Section 2, Article IX-D of the Constitution. As this Court has ruled repeatedly, the intent of the law is the controlling factor in the interpretation of the law.28 If a law needs interpretation, the most dominant influence is the intent of the law. 29 The intent of the law is that which is expressed in the words of the law, which should be discovered within its four corners aided, if necessary, by its legislative history.30 In the case of Section 2, Article IX-D of the Constitution, the intent of the framers of the Constitution is evident from the bare language of Section 2 itself. The deliberations of the Constitutional Commission confirm expressly and even elucidate further this intent beyond any doubt whatsoever. There is another constitutional barrier to the COA's insistence of exclusive power to examine and audit all government agencies. The COA's claim clashes directly with the Central Bank's constitutional power of "supervision" over banks under Section 20, Article XII of the Constitution. This provision states as follows:

"Sec. 20. The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall also be subject to such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the areas of money, banking, and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions." (Emphasis supplied) Historically, the Central Bank has been conducting periodic and special examination and audit of banks to determine the soundness of their operations and the safety of the deposits of the public. Undeniably, the Central Bank's power of "supervision" includes the power to examine and audit banks, as the banking laws have always recognized this power of the Central Bank.31 Hence, the COA's power to examine and audit government banks must be reconciled with the Central Bank's power to supervise the same banks. The inevitable conclusion is that the COA and the Central Bank have concurrent jurisdiction, under the Constitution, to examine and audit government banks. However, despite the Central Bank's concurrent jurisdiction over government banks, the COA's audit still prevails over that of the Central Bank since the COA is the constitutionally mandated auditor of government banks. And in matters falling under the second paragraph of Section 2, Article IX-D of the Constitution, the COA's jurisdiction is exclusive. Thus, the Central Bank is devoid of authority to allow or disallow expenditures of government banks since this function belongs exclusively to the COA. Second Issue: Statutes Prohibiting or Authorizing Private Auditors The COA argues that Sections 26, 31 and 32 of PD No. 1445, otherwise known as the Government Auditing Code of the Philippines, prohibit the hiring of private auditors by government agencies. Section 26 of PD No. 1445 provides that: "Section 26. General Jurisdiction. The authority and powers of the Commission shall extend to and comprehend all matters relating to auditing procedures, systems and controls, the keeping of the general accounts of the Government, the preservation of vouchers pertaining thereto for a period of ten years, the examination and inspection of the books, records, and papers relating to those accounts; and the audit and settlement of the accounts of all persons respecting funds or property received or held by them in an accountable capacity, as well as the examination, audit, and settlement of all debts and claims of any sort due or owing to the Government or any of its subdivisions, agencies or instrumentalities. The said jurisdiction extends to all government-owned or controlled corporations, including their subsidiaries, and other self-governing boards, commissions, or agencies of the Government, and as herein prescribed, including non-governmental entities subsidized by the government, those funded by donations through the government, those required to pay levies or government share, and those for which the government has put up a counterpart fund or those partly funded by the government." Section 26 defines the extent and scope of the powers of the COA. Considering the comprehensive definition in Section 26, the COA's jurisdiction covers all government agencies, offices, bureaus and units, including government-owned or controlled corporations, and even non-government entities enjoying subsidy from the government. However, there is nothing in Section 26 that states, expressly or impliedly, that the COA's power to examine and audit government banks is exclusive, thereby preventing private audit of government agencies concurrently with the COA audit. Section 26 is a definition of the COA's "general jurisdiction." Jurisdiction may be exclusive or concurrent. Section 26 of PD No. 1445 does not state that the COA's jurisdiction is exclusive, and there are other laws providing for concurrent jurisdiction. Thus, Section 26 must be applied in harmony with Section 5832 of the General Banking Law of 2000 (RA No. 8791) which authorizes unequivocally the Monetary Board to require banks to hire independent auditors. Section 58 of the General Banking Law of 2000 states as follows: "Section 58. Independent Auditor. - The Monetary Board may require a bank, quasi-bank or trust entity to engage the services of an independent auditor to be chosen by the bank, quasi-bank or trust entity concerned from a list of certified public accountants acceptable to the Monetary Board. The term of the engagement shall be as prescribed by the Monetary Board which may either be on a continuing basis where the auditor shall act as resident examiner, or on the basis of special engagements; but in any case, the independent auditor shall be responsible to the bank's, quasi-bank's or trust entity's board of directors. A copy of the report shall be furnished to the Monetary Board. x x x." (Emphasis supplied) Moreover, Section 26 must also be applied in conformity with Sections 25 and 2833 of the New Central Bank Act (RA No. 7653) which authorize expressly the Monetary Board to conduct periodic or special examination of all banks. Sections 25 and 28 of the New Central Bank Act state as follows: "Sec. 25. Supervision and Examination. The Bangko Sentral shall have supervision over, and conduct periodic or special examinations of, banking institutions x x x. (Emphasis supplied) xxx "Sec. 28. Examination and Fees. The supervising and examining department head, personally or by deputy, shall examine the books of every banking institution once in every twelve (12) months, and at such other time as the Monetary Board by an affirmative vote of five (5) members may deem expedient and to make a report on the same to the Monetary Board: x x x." (Emphasis supplied) The power vested in the Monetary Board under Section 58 of the General Banking Law of 2000, and Sections 25 and 28 of the New Central Bank Act, emanates from the Central Bank's explicit constitutional mandate to exercise "supervision over the operations of banks." Under Section 4 of the General Banking Law of 2000, the term "supervision"34 is defined as follows: "Section 4. Supervisory Powers. The operations and activities of banks shall be subject to supervision of the Bangko Sentral. "Supervision" shall include the following: xxx

4.2. The conduct of examination to determine compliance with laws and regulations if the circumstances so warrant as determined by the Monetary Board; xxx 4.4. Regular investigation which shall not be oftener than once a year from the last date of examination to determine whether an institution is conducting its business on a safe or sound basis: Provided, That the deficiencies/irregularities found by or discovered by an audit shall immediately be addressed; x x x." (Emphasis supplied) Clearly, under existing laws, the COA does not have the sole and exclusive power to examine and audit government banks. The Central Bank has concurrent jurisdiction to examine and audit, or cause the examination and audit, of government banks. Section 31 of PD No. 1445, another provision of law claimed by the COA to prohibit the hiring of private auditors by government agencies, provides as follows: "Section 31. Deputization of private licensed professionals to assist government auditors. - (1) The Commission may, when the exigencies of the service so require, deputize and retain in the name of the Commission such certified public accountants and other licensed professionals not in the public service as it may deem necessary to assist government auditors in undertaking specialized audit engagements. "(2) The deputized professionals shall be entitled to such compensation and allowances as may be stipulated, subject to pertinent rules and regulations on compensation and fees." According to the COA, Section 31 is the maximum extent that private auditors can participate in auditing government agencies and anything beyond this is without legal basis. Hence, the COA maintains that the hiring of private auditors who act in their own name and operate independently of the COA is unlawful. Section 31 is bereft of any language that prohibits, expressly or impliedly, the hiring of private auditors by government agencies. This provision of law merely grants authority to the COA to hire and deputize private auditors to assist the COA in the auditing of government agencies. Such private auditors operate under the authority of the COA. By no stretch of statutory construction can this provision be interpreted as an absolute statutory ban on the hiring of private auditors by government agencies. Evidently, the language of the law does not support the COA's claim. Moreover, the COA further contends that Section 32 of PD No. 1445 is another provision of law that prohibits the hiring of private auditors by government agencies. Section 32 provides as follows: "Section 32. Government contracts for auditing, accounting, and related services. (1) No government agency shall enter into any contract with any private person or firm for services to undertake studies and services relating to government auditing, including services to conduct, for a fee, seminars or workshops for government personnel on these topics, unless the proposed contract is first submitted to the Commission to enable it to determine if it has the resources to undertake such studies or services. The Commission may engage the services of experts from the public or private sector in the conduct of these studies. "(2) Should the Commission decide not to undertake the study or service, it shall nonetheless have the power to review the contract in order to determine the reasonableness of its costs." (Emphasis supplied) Section 32 refers to contracts for studies and services "relating to government auditing" which the COA may or may not want to undertake itself for a government agency. Stated another way, Section 32 speaks of studies and services that the COA may choose not to render to a government agency. Obviously, the subject of these contracts is not the audit itself of a government agency because the COA is compelled to undertake such audit and cannot choose not to conduct such audit. The Constitution and existing law mandate the COA to audit all government agencies. Section 2, Article IX-D of the Constitution commands that the COA "shall have the x x x duty to examine, audit, and settle all accounts" of government agencies (Emphasis supplied). Similarly, the Revised Administrative Code of 1987 directs that the "Commission on Audit shall have the x x x duty to examine, audit, and settle all accounts"35 of government agencies (Emphasis supplied). Hence, the COA cannot refuse to audit government agencies under any circumstance. The subject of the contracts referred to in Section 32 is necessarily limited to studies, seminars, workshops, researches and other services on government auditing which the COA may or may not undertake at its discretion, thereby excluding the audit itself of government agencies. Since the COA personnel have the experience on government auditing and are in fact the experts on this subject, it is only proper for the COA to be granted the right of first refusal to undertake such services if required by government agencies. This is what Section 32 is all about and nothing more. Plainly, there is nothing in Section 32 which prohibits the hiring of private auditors to audit government agencies concurrently with the COA audit.1wphi1.nt On the other hand, the DBP cites Central Bank Circular No. 112436 as legal basis for hiring a private auditor. This Circular amended Subsection 1165.5 (Book I) of the Manual of Regulations for Banks and other Financial Intermediaries to require "[E]ach bank, whether government-owned or controlled or private, x x x (to) cause an annual financial audit to be conducted by an external auditor x x x." Moreover, the Circular states that the "audit of a government-owned or controlled bank by an external independent auditor shall be in addition to and without prejudice to that conducted by the Commission on Audit in the discharge of its mandate under existing law." Furthermore, the Circular provides that the "requirement for an annual audit by an external independent auditor shall extend to specialized and unique government banks such as the Land Bank of the Philippines and the Development Bank of the Philippines." The Central Bank promulgated Circular No. 1124 on December 5, 1986 pursuant to its power under the Freedom Constitution, the fundamental law then in force, as well as pursuant to its general rule making authority under the General Banking Act (RA No. 337), the banking law in effect at that time. Under the Freedom Constitution, the Central Bank exercised supervisory authority over the banking system. Section 14, Article XV of the 1973 Constitution, which was re-adopted in the Freedom Constitution, provided as follows:

"SEC. 14. The Batasang Pambansa shall establish a central monetary authority which shall provide policy direction in the areas of money, banking and credit. It shall have supervisory authority over the operations of banks and exercise such regulatory authority as may be provided by law over the operations of finance companies and other institutions performing similar functions. Until the Batasang Pambansa shall otherwise provide, the Central Bank of the Philippines, operating under existing laws, shall function as the central monetary authority." (Emphasis supplied) Section 6-D of the General Banking Act (RA No. 337) vested the Monetary Board with the specific power to "require a bank to engage the services of an independent auditor to be chosen by the bank concerned from a list of certified public accountants acceptable to the Monetary Board." The 1987 Constitution created an independent central monetary authority with substantially the same powers as the Central Bank under the 1973 Constitution and the Freedom Constitution. Section 20, Article XII of the 1987 Constitution provides that the Monetary Board "shall have supervision over the operations of banks". The specific power of the Central Bank under the General Banking Act (RA No. 337) to require an independent audit of banks was re-enacted in Section 58 of the General Banking Law of 2000 (RA No. 8791). Indubitably, the Central Bank had the express constitutional and statutory power to promulgate Circular No. 1124 on December 5, 1986. The power granted to the Central Bank to issue Circular No. 1124 with respect to the independent audit of banks is direct, unambiguous, and beyond dispute. The Bangko Sentral ng Pilipinas, which succeeded the Central Bank, retained under the 1987 Constitution and the General Banking Law of 2000 (RA No. 8791) the same constitutional and statutory power the Central Bank had under the Freedom Constitution and the General Banking Act (RA No. 337) with respect to the independent audit of banks. Circular No. 1124 has the force and effect of law. In a long line of decisions, 37 this Court has held consistently that the rules and regulations issued by the Central Bank pursuant to its supervisory and regulatory powers have the force and effect of law. The DBP, being a bank under the constitutional and statutory supervision of the Central Bank, was under a clear legal obligation to comply with the requirement of Circular No. 1124 on the private audit of banks. Refusal by the DBP to comply with the Circular would have rendered the DBP and its officers liable to the penal provisions of the General Banking Act, 38 as well as the administrative and penal sanctions under the Central Bank Act.39 The DBP also relies on Section 8 of PD No. 2029 as its statutory basis for hiring a private auditor. This Section states in part as follows: "The audit of government corporations by the Commission on Audit shall not preclude government corporations from engaging the services of private auditing firms: Provided, however, that even if the services of the latter are availed of, the audit report of the Commission on Audit shall serve as the report for purposes of compliance with audit requirements as required of government corporations under applicable law." Section 8 of PD No. 2029, however, also provides that the "policy of withdrawal of resident auditors shall be fully implemented x x x." Section 2 of the same decree also excludes from the term "government-owned or controlled corporation" two classes of corporations. The first are originally private corporations the majority of the shares of stock of which are acquired by government financial institutions through foreclosure or dacion en pago. The second are subsidiary corporations of government corporations, which subsidiaries are organized exclusively to own, manage or lease physical assets acquired by government financial institutions through foreclosure or dacion en pago. Claiming that PD No. 2029 operates to exempt certain government-owned corporations from the COA's jurisdiction in violation of Section 3, Article IX-D of the Constitution, the COA is questioning the constitutionality of PD No. 2029. There is, however, no compelling need to pass upon the constitutionality of PD No. 2029 because the Constitution and existing banking laws allow such hiring. The issues raised in this case can be resolved adequately without resolving the constitutionality of PD No. 2029. This Court will leave the issue of the constitutionality of PD No. 2029 to be settled in another case where its resolution is an absolute necessity. 40 Third Issue: Necessity of Private Auditor and Reasonableness of the Fees The remaining issue to be resolved is whether or not the DBP's hiring of a private auditor was necessary and the fees it paid reasonable under the circumstances. The hiring by the DBP of a private auditor was a condition imposed by the World Bank for the grant to the Philippine government in early 1987 of a US$310 million Economic Recovery Loan, at a time when the government desperately needed funds to revive a badly battered economy. One of the salient objectives of the US$310 million loan was the rehabilitation of the DBP which was then burdened with enormous bad loans. The rehabilitation of the DBP was important in the overall recovery of the national economy. On February 23, 1986, the World Bank President reported to the Bank's Executive Directors that the privately audited accounts of the DBP for 1986 and 1987 "will be a requirement for the releases of the second and third tranches, respectively, of the ERL" (Emphasis supplied). Moreover, the Agreed Minutes of Negotiations on the Philippine Economic Recovery Program41 signed by the Philippine government and World Bank negotiating panels on January 8, 1987, required that "a copy of COA's letter x x x regarding DBP's appointment of a private external auditor will be sent to the (World) Bank before the distribution of the loan documents to the Bank's Board, along with a copy of the scope of audit as approved by COA and satisfactory to the Bank" (Emphasis supplied). As a creditor, the World Bank needed the private audit for its own information to monitor the progress of the DBP's rehabilitation. This is apparent from the said Agreed Minutes which provided that the "general terms of reference (for the hiring of private external audit) were discussed during the negotiations and form part of the World Bank's guidelines for financial information on financial institutions"42 (Emphasis supplied). The hiring of a private auditor being an express condition for the grant of the US$310 million Economic Recovery Loan, a major objective of which was the DBP's rehabilitation, the same was a necessary corporate act on the part of the DBP. The national government, represented by the Central Bank Governor, as well as the Ministers of Finance, Trade, and Economic Planning, had already committed to the hiring by all government banks of private auditors in addition to the COA. For the DBP to refuse to hire a private auditor would have aborted the vital loan and derailed the national economic recovery, resulting in grave consequences to the entire nation. The hiring of a private auditor was not only necessary based on the government's loan covenant with the World Bank, it was also necessary because it was mandated by Central Bank Circular No. 1124 under pain of administrative and penal sanctions. The last matter to determine is the reasonableness of the fees charged by Joaquin C. Cunanan & Co., the private auditor hired by the DBP. The COA describes the private auditor's fees as an "excessive, extravagant or unconscionable expenditure" of government funds. For the audit of the DBP's financial statements in 1986, the private auditor billed the DBP the amount of P487,321.14.43 In 1987, the private auditor billed the DBP the amount of P529,947.00.44 In comparison, the COA billed the

DBP an audit fee of P27,015,963.0045 in 1988, and P15,421,662.0046 in 1989. Even granting that the COA's scope of audit services was broader,47 still it could not be said that the private auditor's fees are excessive, extravagant or unconscionable compared to the COA's billings. The hiring of a private auditor by the DBP being a condition of the US$310 million World Bank loan to the Philippine government, the fees of such private auditor are in reality part of the government's cost of borrowing from the World Bank. The audit report of the private auditor is primarily intended for the World Bank's information48 on the financial status of the DBP whose rehabilitation was one of the objectives of the loan. An annual private audit fee of about half a million pesos added to the interest on a US$310 million loan would hardly make the cost of borrowing excessive, extravagant or unconscionable. Besides, the condition imposed by a lender, whose money is at risk, requiring the borrower or its majority-owned subsidiaries to submit to audit by an independent public accountant, is a reasonable and normal business practice. 1wphi1.nt WHEREFORE, the petition is hereby GRANTED. The letter-decision of the Chairman of the Commission on Audit dated August 29, 1988, and the letter-decision promulgated by the Commission on Audit en banc dated May 20, 1989, are hereby SET ASIDE, and the temporary restraining order issued by the court enjoining respondent Commission on Audit from enforcing the said decisions is hereby made PERMANENT. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-inintervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents. JAIME N. SORIANO, respondent-in-Intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160262 November 10, 2003 SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-ABAD, petitioners, ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160263 November 10, 2003 ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-intervention, vs. FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160277 November 10, 2003 FRANCISCO I. CHAVEZ, petitioner, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x

G.R. No. 160292 November 10, 2003 HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160295 November 10, 2003 SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160310 November 10, 2003 LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents. x---------------------------------------------------------x G.R. No. 160318 November 10, 2003 PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs. HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents. x---------------------------------------------------------x G.R. No. 160342 November 10, 2003 ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs. THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents. x---------------------------------------------------------x G.R. No. 160343 November 10, 2003 INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE

VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents. x---------------------------------------------------------x G.R. No. 160360 November 10, 2003 CLARO B. FLORES, petitioner, vs. THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents. x---------------------------------------------------------x G.R. No. 160365 November 10, 2003 U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, vs. THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents. x---------------------------------------------------------x G.R. No. 160370 November 10, 2003 FR. RANHILIO CALLANGAN AQUINO, petitioner, vs. THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents. x---------------------------------------------------------x G.R. No. 160376 November 10, 2003 NILO A. MALANYAON, petitioner, vs. HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents. x---------------------------------------------------------x G.R. No. 160392 November 10, 2003 VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners, vs. THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents. x---------------------------------------------------------x G.R. No. 160397 November 10, 2003 IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner. x---------------------------------------------------------x G.R. No. 160403 November 10, 2003 PHILIPPINE BAR ASSOCIATION, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE

GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents. x---------------------------------------------------------x G.R. No. 160405 November 10, 2003 DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners, vs. THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE PRESIDENT, respondents. CARPIO MORALES, J.: There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly irreconcilable it may appear to be, over the determination by the independent branches of government of the nature, scope and extent of their respective constitutional powers where the Constitution itself provides for the means and bases for its resolution. Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the relationship among these co-equal branches. This Court is confronted with one such today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon. There may indeed be some legitimacy to the characterization that the present controversy subject of the instant petitions whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the Constitution, and whether the resolution thereof is a political question has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of conscience. In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and protection of the public interest lie in adherence to, not departure from, the Constitution. In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people. At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality. Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental power is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex. Article XI of our present 1987 Constitution provides: ARTICLE XI Accountability of Public Officers 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. SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from

such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. (Emphasis and underscoring supplied) Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules 1 approved by the 11th Congress. The relevant distinctions between these two Congresses' House Impeachment Rules are shown in the following tabulation:

11TH CONGRESS RULES

12TH CONGRESS NEW RULES

RULE II INITIATING IMPEACHMENT Section 2. Mode of Initiating Impeachment. Impeachment shall be initiated only by a verified complaint for impeachment filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof or by a verified complaint or resolution of impeachment filed by at least one-third (1/3) of all the Members of the House.

RULE V BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL Section 16. Impeachment Proceedings Deemed Initiated. In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

RULE V BAR AGAINST IMPEACHMENT Section 14. Scope of Bar. No impeachment proceedings shall be initiated against the same official more than once within the period of one (1) year.

Section 17. Bar Against Initiation Of Impeachment Proceedings. Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official. (Italics in the original; emphasis and underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution, 2 sponsored by Representative Felix William D. Fuentebella, which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)."3 On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes." 6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen, 7 and was referred to the House Committee on Justice on August 5, 2003 8 in accordance with Section 3(2) of Article XI of the Constitution which reads: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution. Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint11 was filed with the Secretary General of the House12 by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least onethird (1/3) of all the Members of the House of Representatives.13 Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year." In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress," 14 posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike it off the records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging that the issues of the case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event that the Senate has accepted the same, from proceeding with the impeachment trial. In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves public interest as it involves the use of public funds necessary to conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a writ of prohibition enjoining Congress from conducting further proceedings on said second impeachment complaint. In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that the second impeachment complaint be declared unconstitutional. In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting, approving and transmitting to the Senate the second impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of Impeachment to the Senate. In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be declared null and void. In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be protected against all forms of senseless spending of taxpayers' money and that they have an obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray that (1) the House Resolution endorsing the second impeachment complaint as well as all issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from conducting any proceedings or to act on the impeachment complaint. In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing of the second impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order and Permanent Injunction to enjoin the House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be declared unconstitutional and that the House of Representatives be permanently enjoined from proceeding with the second impeachment complaint. In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition that the House Impeachment Rules be declared unconstitutional. In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives and the Senate from conducting further proceedings on the second impeachment complaint and that this Court declare as unconstitutional the second impeachment complaint and the acts of respondent House of Representatives in interfering with the fiscal matters of the Judiciary. In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for Prohibition are of national and transcendental significance and that as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered operation of the Supreme Court and its officials in discharging their duties in accordance with the Constitution, prays for the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or giving the impeachment complaint due course. In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint, were "absolutely without any legal power to do so, as they acted without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the (JDF)." In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as professors of law they have an abiding interest in the subject matter of their petition for Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to inculcate in the minds of their students," pray that the House of Representatives be enjoined from endorsing and the Senate from trying the Articles of Impeachment and that the second impeachment complaint be declared null and void. In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that the second impeachment complaint is founded on the issue of whether or not the Judicial Development Fund (JDF) was spent in accordance with law and that the House of Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that the second impeachment complaint be declared null and void. In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the second impeachment complaint involve matters of transcendental importance, prays in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be prohibited from accepting the Articles of Impeachment and from conducting any proceedings thereon. In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement and impeachment by the respondent House of Representatives be declared null and void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the same, that they be prohibited from proceeding with the impeachment trial. Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which were filed before this Court,18 prayed for the issuance of a Temporary Restraining Order and/or preliminary injunction to prevent the House of Representatives from transmitting the Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional. Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary. On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that the second impeachment complaint be formally transmitted to the Senate, but it was not carried because the House of Representatives adjourned for lack of quorum, 19 and as reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate. Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court directed him to participate. Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this Court called on petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for and in their behalf to refrain from committing acts that would render the petitions moot. Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of Representatives, which is an independent and co-equal branch of government under the Constitution, from the performance of its constitutionally mandated duty to initiate impeachment cases. On even date, Senator

Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide impeachment cases, including the one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution."22 Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with the earlier consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003. On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the proceedings in the House of Representatives. On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as the matter in question is not yet ripe for judicial determination. On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in Intervention." On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310. The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys Macalintal and Quadra's Petition in Intervention were admitted. On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003, to wit: Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what time; and whether it should be exercised by this Court at this time. In discussing these issues, the following may be taken up: a) locus standi of petitioners; b) ripeness(prematurity; mootness); c) political question/justiciability; d) House's "exclusive" power to initiate all cases of impeachment; e) Senate's "sole" power to try and decide all cases of impeachment; f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the Constitution; and g) judicial restraint (Italics in the original) In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions as well as the myriad arguments and opinions presented for and against the grant of the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and novel issue of whether or not the power of judicial review extends to those arising from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be discussed in seriatim. Judicial Review As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the validity of the second impeachment complaint. This Court's power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution: SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Emphasis supplied)

Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the 1935 Constitution whose provisions, unlike the present Constitution, did not contain the present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed: x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because 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.24 (Italics in the original; emphasis and underscoring supplied) As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of powers" of the different branches of government and "to direct the course of government along constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving rights which are legally demandable and enforceable."26 Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts by its Constitution, such power has "been set at rest by popular acquiescence for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice Marshall, to wit: It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. 28 (Italics in the original; emphasis supplied) In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power of judicial review was exercised by our courts to invalidate constitutionally infirm acts.29 And as pointed out by noted political law professor and former Supreme Court Justice Vicente V. Mendoza, 30 the executive and legislative branches of our government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit: Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied) As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves. The separation of powers is a fundamental principle in our system of government . It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.32 (Emphasis and underscoring supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial review is the chief, indeed the only, medium of participation or instrument of intervention of the judiciary in that balancing operation."34 To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into its history, into block letter law the so-called "expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner Roberto Concepcion: xxx The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law . As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. x x x xxx Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.35 (Italics in the original; emphasis and underscoring supplied) To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the Constitution itself which employs the well-settled principles of constitutional construction. First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration ,36 this Court, speaking through Chief Justice Enrique Fernando, declared: We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are the cases where the need for construction is reduced to a minimum.37 (Emphasis and underscoring supplied) Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v. Executive Secretary38 in this wise: A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.39 (Emphasis and underscoring supplied) As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame Justice Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers.41 (Emphasis and underscoring supplied) Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared: x x x [T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document.43 (Emphasis and underscoring supplied) Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that: It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory.45 (Emphasis supplied) If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded: While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof.46 (Emphasis and underscoring supplied) It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of judicial review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel argument that the Constitution has excluded impeachment proceedings from the coverage of judicial review. Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a political action which cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment proceeding is beyond the reach of judicial review. 47 For his part, intervenor Senator Pimentel contends that the Senate's "sole power to try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2) necessarily includes the Senate's power to determine constitutional questions relative to impeachment proceedings.49 In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over impeachment proceedings is inappropriate since it runs counter to the framers' decision to allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system of checks and balances, under which impeachment is the only legislative check on the judiciary; and it would create a lack of finality and difficulty in fashioning relief. 51 Respondents likewise point to deliberations on the US Constitution to show the intent to isolate judicial power of review in cases of impeachment. Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and American authorities cannot be credited to support the proposition that the Senate's "sole power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of the power of judicial review to check and restrain any grave abuse of the impeachment process. Nor can it reasonably support the interpretation that it necessarily confers upon the Senate the inherently judicial power to determine constitutional questions incident to impeachment proceedings. Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs."53 Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord." The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation,54 our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases, 55 provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness and pride." 56 But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of Baker v. Carr,57 "judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review. The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of the argument that the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly. Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another." 67 Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution. Essential Requisites for Judicial Review As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. x x x Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because 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.68 (Italics in the original) Standing Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.69 Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends. Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest70 and transcendental importance,71 and that procedural matters are subordinate to the need to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance and the well-entrenched rule exception that, when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant petitioners standing. There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a concept of civil procedure73 while the latter has constitutional underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it from real party-in-interest.

The difference between the rule on standing and real party in interest has been noted by authorities thus: "It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas. Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." xxx On the other hand, the question as to "real party in interest" is whether he is "the party who would be benefited or injured by the judgment, or the 'party entitled to the avails of the suit.'"76 (Citations omitted) While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the House of Representatives, none of the petitioners before us asserts a violation of the personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar and of the legal profession which were supposedly violated by the alleged unconstitutional acts of the House of Representatives. In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court. When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.77 In fine, when the proceeding involves the assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of personal interest. In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. 79 Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public.80 At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained. 81 This Court opts to grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds. As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.83 While an association has legal personality to represent its members, 84 especially when it is composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the petitions shows that it has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by it. In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court to deal properly with all interests involved in the suit, 88 for a judgment in a class suit, whether favorable or unfavorable to the class, is, under the res judicata principle, binding on all members of the class whether or not they were before the court.89 Where it clearly appears that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionally allege standing as citizens and taxpayers, however, their petition will stand. The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing. There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.90 Applying these determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance. In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to the public.91 Such liberality does not, however, mean that the requirement that a party should have an interest in the matter is totally eliminated. A party must, at the very least, still plead the existence of such interest, it not being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to allege any interest in the case. He does not thus have standing. With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to possess a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. While intervention is not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy the requirements of the law authorizing intervention.92

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to Intervene and Petition-in-Intervention. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that "they will suffer if this insidious scheme of the minority members of the House of Representatives is successful," this Court found the requisites for intervention had been complied with. Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310 were of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to raise the additional issue of whether or not the second impeachment complaint against the Chief Justice is valid and based on any of the grounds prescribed by the Constitution. Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to intervene were hereby granted. Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and arguing a point of view that differs with Senate President Drilon's. He alleges that submitting to this Court's jurisdiction as the Senate President does will undermine the independence of the Senate which will sit as an impeachment court once the Articles of Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress against which the herein petitions are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue. Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit: x x x While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protection against abuses of legislative power," or that there is a misapplication of such funds by respondent COMELEC, or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.94 (Citations omitted) In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result in illegal disbursement of public funds or in public money being deflected to any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with standing. Ripeness and Prematurity In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be considered ripe for adjudication, "it is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture." 96 Only then may the courts pass on the validity of what was done, if and when the latter is challenged in an appropriate legal proceeding. The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been filed with the House of Representatives and the 2001 Rules have already been already promulgated and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with. Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be no urgent need for this Court to render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He thus recommends that all remedies in the House and Senate should first be exhausted. Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take judicial notice of on-going attempts to encourage signatories to the second impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules provide for an opportunity for members to raise constitutional questions themselves when the Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss. The dean's position does not persuade. First, the withdrawal by the Representatives of their signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the Constitution 97 and, therefore, petitioners would continue to suffer their injuries. Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before coming to this Court is shown by the fact that, as previously discussed, neither the House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it. Justiciability In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term "political question," viz: [T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.99 (Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court vacillated on its stance of taking cognizance of cases which involved political questions. In some cases, this Court hid behind the cover of the political question doctrine and refused to exercise its power of judicial review.100 In other cases, however, despite the seeming political nature of the therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed limits on powers or functions conferred upon political bodies. 101 Even in the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political question, it being a question decided by the people in their sovereign capacity. The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional Commissioner, to clarify this Court's power of judicial review and its application on issues involving political questions, viz: MR. CONCEPCION. Thank you, Mr. Presiding Officer. I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without exception. x x x And so, with the body's indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary. The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced on September 22, although the proclamation was dated September 21. The obvious reason for the delay in its publication was that the administration had apprehended and detained prominent newsmen on September 21. So that when martial law was announced on September 22, the media hardly published anything about it. In fact, the media could not publish any story not only because our main writers were already incarcerated, but also because those who succeeded them in their jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up. One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacaang. In 17 days, they finished what the delegates to the 1971 Constitutional Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was presented to the President around December 1, 1972, whereupon the President issued a decree calling a plebiscite which suspended the operation of some provisions in the martial law decree which prohibited discussions, much less public discussions of certain matters of public concern. The purpose was presumably to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in January 1973. If I may use a word famous by our colleague, Commissioner Ople, during the interregnum, however, the draft of the Constitution was analyzed and criticized with such a telling effect that Malacaang felt the danger of its approval. So, the President suspended indefinitely the holding of the plebiscite and announced that he would consult the people in a referendum to be held from January 10 to January 15. But the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning, under the supposed supervision not of the Commission on Elections, but of what was then designated as "citizens assemblies or barangays." Thus the barangays came into existence. The questions to be propounded were released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme Court praying that the holding of the referendum be suspended. When the motion was being heard before the Supreme Court, the Minister of Justice delivered to the Court a proclamation of the President declaring that the new Constitution was already in force because the overwhelming majority of the votes cast in the referendum favored the Constitution. Immediately after the departure of the Minister of Justice, I proceeded to the session room where the case was being heard. I then informed the Court and the parties the presidential proclamation declaring that the 1973 Constitution had been ratified by the people and is now in force. A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case. xxx The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had been no referendum. Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they dismissed the case. This is not the only major case in which the plea of "political question" was set up. There have been a number of other cases in the past. x x x The defense of the political question was rejected because the issue was clearly justiciable. xxx x x x When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is judicial power? What is a political question? The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity." This is why the first part of the second paragraph of Section I provides that: Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable . . . The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice. Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied) During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the concept of judicial power, thus: MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law. MR. CONCEPCION. Yes. MR. NOLLEDO. And so, is this only an example? MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference. MR. NOLLEDO. Because of the expression "judicial power"? MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide. xxx FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new numerical need for votes. On another point, is it the intention of Section 1 to do away with the political question doctrine? MR. CONCEPCION. No. FR. BERNAS. It is not.

MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. . . FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political question doctrine. MR. CONCEPCION. No, certainly not. When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it says, "judicial power includes" and the reason being that the definition that we might make may not cover all possible areas. FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question doctrine. MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial power.104 (Emphasis supplied) From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly political questions." From this clarification it is gathered that there are two species of political questions: (1) "truly political questions" and (2) those which "are not truly political questions." Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in nature. As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution. In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held: The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. 106 x x x In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court declared: The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases."108 (Emphasis and underscoring supplied) And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled: In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question.110 x x x (Emphasis and underscoring supplied.) Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable political questions, however. Identification of these two species of political questions may be problematic. There has been no clear standard. The American case of Baker v. Carr111 attempts to provide some: x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.112 (Underscoring supplied) Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion. These standards are not separate and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion that the others are also present. The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether they should pass upon a constitutional issue. In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits. This Court shall thus now apply this standard to the present controversy. These petitions raise five substantial issues: I. Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offenses under the Constitution.

II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of the Constitution. III. Whether the legislative inquiry by the House Committee on Justice into the Judicial Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal autonomy of the judiciary. IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution. V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue would require this Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission.113 Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the 1986 Constitutional Commission shows that the framers could find no better way to approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a standard therefor. 114 Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond the scope of its judicial power under Section 1, Article VIII. Lis Mota It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections,115 this Court held: x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable.116 [Emphasis and underscoring supplied] The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process, to wit: It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself.118 [Emphasis supplied] Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or crux of the controversy. As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment complaint, collectively raise several constitutional issues upon which the outcome of this controversy could possibly be made to rest. In determining whether one, some or all of the remaining substantial issues should be passed upon, this Court is guided by the related cannon of adjudication that "the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied."119 In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment complaint is invalid since it directly resulted from a Resolution120 calling for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of the judiciary. 121 Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is too far removed from the issue of the validity of the second impeachment complaint. Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of constitutional law touching on the separate and distinct matter of legislative inquiries in general, which would thus be broader than is required by the facts of these consolidated cases. This opinion is further strengthened by the fact that said petitioners have raised other grounds in support of their petition which would not be adversely affected by the Court's ruling. En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz: The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in accordance with its duly published

rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the right rights of persons under the Bill of Rights must be respected, including the right to due process and the right not be compelled to testify against one's self.123 In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original petition of petitioners Candelaria, et. al., introduce the new argument that since the second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of the Constitution which reads: Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. They assert that while at least 81 members of the House of Representatives signed a Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-mentioned section in that the "verified complaint or resolution of impeachment" was not filed "by at least one-third of all the Members of the House." With the exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a "Resolution of Endorsement." Intervenors point to the "Verification" of the Resolution of Endorsement which states that: "We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"124 Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second impeachment complaint to automatically become the Articles of Impeachment and for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at least one-third of the Members of the House of Representatives. Not having complied with this requirement, they concede that the second impeachment complaint should have been calendared and referred to the House Committee on Justice under Section 3(2), Article XI of the Constitution, viz: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of the Constitution to apply, there should be 76 or more representatives who signed and verified the second impeachment complaint as complainants, signed and verified the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the Resolution of Endorsement/Impeachment signed by at least one-third of the members of the House of Representatives as endorsers is not the resolution of impeachment contemplated by the Constitution, such resolution of endorsement being necessary only from at least one Member whenever a citizen files a verified impeachment complaint. While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the constitutional issues to the provisions on impeachment, more compelling considerations militate against its adoption as the lis mota or crux of the present controversy. Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other petitioners as well. Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their own. Consequently, they are not unduly prejudiced by this Court's decision. In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. Judicial Restraint Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an impeachment court, has the sole power to try and decide all cases of impeachment. Again, this Court reiterates that the power of judicial review includes the power of review over justiciable issues in impeachment proceedings. On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion for the Court to not assume jurisdiction over the impeachment because all the Members thereof are subject to impeachment."125 But this argument is very much like saying the Legislature has a moral compulsion not to pass laws with penalty clauses because Members of the House of Representatives are subject to them. The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to which the controversy may be referred." 126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant petitions.127 In the august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty." Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must rule upon the challenge because no other office has the authority to do so.128 On the occasion that this Court had been an interested party to the controversy before it, it has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness." 129 After all, "by [his] appointment to the office, the public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or power and to be equipped with a moral fiber strong enough to resist the temptations lurking in [his] office."130

The duty to exercise the power of adjudication regardless of interest had already been settled in the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were interested parties to said case as respondents therein. This would have reduced the Tribunal's membership to only its three Justices-Members whose disqualification was not sought, leaving them to decide the matter. This Court held: Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators. To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being expressly imposed by no less than the fundamental law. It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been unaware of the possibility of an election contest that would involve all Senatorselect, six of whom would inevitably have to sit in judgment thereon. Indeed, such possibility might surface again in the wake of the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or mode for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose disqualification may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively. Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or biases would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire membership of Senators and that no amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication of a senatorial election contest. More recently in the case of Estrada v. Desierto,132 it was held that: Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of judicial independence. The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices.133 (Italics in the original) Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial review. In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows: 1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.' 2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' 3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' 4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground. 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens. 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. 7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted). The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulated into the following categories:

1. that there be absolute necessity of deciding a case 2. that rules of constitutional law shall be formulated only as required by the facts of the case 3. that judgment may not be sustained on some other ground 4. that there be actual injury sustained by the party by reason of the operation of the statute 5. that the parties are not in estoppel 6. that the Court upholds the presumption of constitutionality. As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review: 1. actual case or controversy calling for the exercise of judicial power 2. the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement 3. the question of constitutionality must be raised at the earliest possible opportunity 4. the issue of constitutionality must be the very lis mota of the case.136 Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility that "judicial review of impeachments might also lead to embarrassing conflicts between the Congress and the [J]udiciary." They stress the need to avoid the appearance of impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating and risk serious political instability at home and abroad if the judiciary countermanded the vote of Congress to remove an impeachable official.137 Intervenor Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution against Congress would result in the diminution of its judicial authority and erode public confidence and faith in the judiciary. Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis. Justice Feliciano warned against the dangers when this Court refuses to act. x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the Supreme Court has passed upon the constitutionality of the act involved, the judgment has not only juridical effects but also political consequences. Those political consequences may follow even where the Court fails to grant the petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or the other, itself constitutes a decision for the respondent and validation, or at least quasi-validation, follows." 138 Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were not enough votes either to grant the petitions, or to sustain respondent's claims,"140 the pre-existing constitutional order was disrupted which paved the way for the establishment of the martial law regime. Such an argument by respondents and intervenor also presumes that the coordinate branches of the government would behave in a lawless manner and not do their duty under the law to uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches of government will behave in a precipitate manner and risk social upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land. Substituting the word public officers for judges, this Court is well guided by the doctrine in People v. Veneracion, to wit:141 Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, [public officers] are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor," resist encroachments by governments, political parties, or even the interference of their own personal beliefs.142 Constitutionality of the Rules of Procedure for Impeachment Proceedings adopted by the 12th Congress Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one year bar prohibiting the initiation of impeachment proceedings against the same officials could not have been violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the House of Representatives, acting as the collective body, has yet to act on it.

The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory construction is, therefore, in order. That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of "initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of "initiating" included the act of taking initial action on the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3) and (5) of the Constitution means to file the complaint and take initial action on it. "Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Webster's Third New International Dictionary of the English Language concisely puts it, it means "to perform or facilitate the first action," which jibes with Justice Regalado's position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise: Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice. Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the Justice Committee votes in favor of impeachment or when the House reverses a contrary vote of the Committee. Note that the Rule does not say "impeachment proceedings" are initiated but rather are "deemed initiated." The language is recognition that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis and underscoring supplied) As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records: MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on impeachment, I understand there have been many proposals and, I think, these would need some time for Committee action. However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies of which have been furnished the Members of this body. This is borne out of my experience as a member of the Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in the impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate. xxx MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body. As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging these words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record. xxx MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment. I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment proceedings" and the comma (,) and insert on line 19 after the word "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word "by" with OF, so that the whole section will now read: "A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override its contrary resolution. The vote of each Member shall be recorded." I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of the House. I will mention again, Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress. Thank you, Madam President.143 (Italics in the original; emphasis and udnerscoring supplied) This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the Accountability of Public Officers.144 It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting the phrase "to initiate impeachment proceedings" as contained in the text of the provision of Section 3 (3) was to settle and make it

understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution."145 Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an action to set the complaint moving. During the oral arguments before this Court, Father Bernas clarified that the word "initiate," appearing in the constitutional provision on impeachment, viz: Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. xxx (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year, (Emphasis supplied) refers to two objects, "impeachment case" and "impeachment proceeding." Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the first sentence is "impeachment case." The object in the second sentence is "impeachment proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be distinguished from the term "proceedings." An impeachment case is the legal controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further processing; and (4) there is the processing of the same complaint by the House of Representatives which either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at this point that an impeachable public official is successfully impeached. That is, he or she is successfully charged with an impeachment "case" before the Senate as impeachment court. Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow. The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be necessary to initiate impeachment proceedings," this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does.146 Thus the line was deleted and is not found in the present Constitution. Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated against the same official more than once within a period of one year," it means that no second verified complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it. To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating "impeachment cases" with "impeachment proceeding." From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress' taking initial action of said complaint. Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning from filing and referral. In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to Justices who were delegates to the Constitution Convention) on the matter at issue expressed during this Court's our deliberations stand on a different footing from the properly recorded utterances of debates and proceedings." Further citing said case, he states that this Court likened the former members of the Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent spectators may know more about the real meaning because of the latter's balanced perspectives and disinterestedness.148

Justice Gutierrez's statements have no application in the present petitions. There are at present only two members of this Court who participated in the 1986 Constitutional Commission Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by members of the Constitutional Commission, but has examined the records of the deliberations and proceedings thereof. Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced. Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence, these rules cannot contravene the very purpose of the Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz: Section 3. (1) x x x (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would by necessary implication have the power to alter or amend the meaning of the Constitution without need of referendum. In Osmea v. Pendatun,149 this Court held that it is within the province of either House of Congress to interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its members. However, in Paceta v. Secretary of the Commission on Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be given to a rule affects persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers each house to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. It is only within these limitations that all matters of method are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz: With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I agree that we will trivialize the principle of separation of power if we assume jurisdiction over he case at bar. Even in the United States, the principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on cases involving breach of rules of procedure by legislators. Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional rules. It held: "x x x "The Constitution, in the same section, provides, that each house may determine the rules of its proceedings." It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules: Rule XV 3. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890) The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a

different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal." Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e, whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation of powers. 154 xxx In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts "x x x to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of government.155 xxx The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people.156 xxx The provision defining judicial power as including the 'duty of the courts of justice. . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government' constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis--vis the other branches of government. This provision was dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. x x x xxx In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress this Court is mandated to approach constitutional violations not by finding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present. I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners.157 (Italics in the original emphasis and underscoring supplied) Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging the violation of private rights and the Constitution are involved. Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that "the House of Representatives shall have the sole power of impeachment." It adds nothing more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional commitment of a constitutional power to the House of Representatives. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions articulating how that "exclusive power" is to be exercised. The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the SecretaryGeneral of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different from "filing." Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution. In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period. Conclusion If there is anything constant about this country, it is that there is always a phenomenon that takes the center stage of our individual and collective consciousness as a people with our characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the controversy over the Davide impeachment. For many of us, the past two weeks have proven to be an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe to be the correct position or view on the issues involved. Passions had ran high as demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to air their voice on the matter. Various sectors of society - from the business, retired military, to the academe and denominations of faith offered suggestions for a return to a state of normalcy in the official relations of the governmental branches affected to obviate any perceived resulting instability upon areas of national life. Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court was specifically asked, told, urged and argued to take no action of any kind and form with respect to the prosecution by the House of Representatives of the impeachment complaint against the subject respondent public official. When the present petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-interference was made through what are now the arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may have a bearing on the impeachment proceedings. This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material which only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face thus with a matter or problem that squarely falls under the Court's jurisdiction, no other course of action can be had but for it to pass upon that problem head on. The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law. This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government. Rather, the raison d'etre of the judiciary is to complement the discharge by the executive and legislative of their own powers to bring about ultimately the beneficent effects of having founded and ordered our society upon the rule of law. It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings against the Chief Justice, the members of this Court have actually closed ranks to protect a brethren. That the members' interests in ruling on said issue is as much at stake as is that of the Chief Justice. Nothing could be farther from the truth. The institution that is the Supreme Court together with all other courts has long held and been entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations could be made to it, so long as it rendered judgment according to the law and the facts. Why can it not now be trusted to wield judicial power in these petitions just because it is the highest ranking magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him but the validity of a government branch's official act as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the Supreme Court as likely incapable of impartiality when one of its members is a party to a case, which is simply a non sequitur. No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men before the law as essential to the law's moral authority and that of its agents to secure respect for and obedience to its commands. Perhaps, there is no other government branch or instrumentality that is most zealous in protecting that principle of legal equality other than the Supreme Court which has discerned its real meaning and ramifications through its application to numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice is not above the law and neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of every individual's rights irrespective of his station in life. The Filipino nation and its democratic institutions have no doubt been put to test once again by this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than the Constitution in search for a solution to what many feared would ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to have found answers in our bedrock of legal principles, it is equally important that it went through this crucible of a democratic process, if only to discover that it can resolve differences without the use of force and aggression upon each other. WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent. ---------------------------------------G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent. PUNO, J.: On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities are important enough but more transcendental are the constitutional issues embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine style. First, we take a view of the panorama of events that precipitated the crisis in the office of the President. In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were to serve a six-year term commencing on June 30, 1998. From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1 The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation.2 The House of Representatives did no less. The House Committee on Public Order and Security, then headed by Representative Roilo Golez, decided to investigate the expos of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearhe aded the move to impeach the petitioner. Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner. 4 Four days later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's resignation.7 However, petitioner strenuously held on to his office and refused to resign. The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip. 8 On November 2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino. 10 The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate. This caused political convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative Fuentebella. 12 On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13 The political temperature rose despite the cold December. On December 7, the impeachment trial started. 14 The battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former

Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high and low points were the constant conversational piece of the chattering classes. The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on documents involving a P500 million investment agreement with their bank on February 4, 2000.15 After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading. 16 Then came the fateful day of January 16, when by a vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators. On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal.19 Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the motion.20 January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.21 On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine. 22 In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this government."23 A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts. 25 Rallies for the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial second envelope.26 There was no turning back the tide. The tide had become a tsunami. January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and orderly transfer of power started at Malacaang'' Mabini Hall, Office of the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez. 27 Outside the palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine. At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines. 28 At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace.29 He issued the following press statement:30 "20 January 2001 STATEMENT FROM PRESIDENT JOSEPH EJERCITO ESTRADA At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in to promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA" It also appears that on the same day, January 20, 2001, he signed the following letter:31 "Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA" A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20. 23 Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.33 On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC, to wit: "A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolve unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.1wphi1.nt This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party." Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys. 34 Recognition of respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a reception or vin d' honneur at Malacaang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone call from the White House conveying US recognition of her government.36 On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives.37 The House then passed Resolution No. 175 "expressing the full support of the House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nation's goals under the Constitution."39 On January 26, the respondent signed into law the Solid Waste Management Act. 40 A few days later, she also signed into law the Political Advertising ban and Fair Election Practices Act.41 On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President. 42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr.43 Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator Guingona's nomination in Resolution No. 178. 45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46 On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated.47 Senator Miriam DefensorSantiago stated "for the record" that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the resolution left open the question of whether Estrada was still qualified to run for another elective post. 48 Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among the E's or very poor class.50 After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption. A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints against him. Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same

day, February 6, required the respondents "to comment thereon within a non-extendible period expiring on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February 15." On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have "compromised themselves by indicating that they have thrown their weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous replies. In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved: "(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution; (2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for contempt to refrain from making any comment or discussing in public the merits of the cases at bar while they are still pending decision by the Court, and (3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from resolving or deciding the criminal cases pending investigation in his office against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will make the cases at bar moot and academic."53 The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision. The bedrock issues for resolution of this Court are: I Whether the petitions present a justiciable controversy. II Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President. III Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution. IV Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity. We shall discuss the issues in seriatim. I Whether or not the cases At bar involve a political question Private respondents54 raise the threshold issue that the cases at bar pose a political question, and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended the presidency through people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the powers of the presidency and that she has been recognized by foreign governments. They submit that these realities on ground constitute the political thicket, which the Court cannot enter. We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century, the political question doctrine which rests on the principle of separation of powers and on prudential considerations, continue to be refined in the mills of constitutional law. 55 In the United States, the most authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz: "x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made;

or the potentiality of embarrassment from multifarious pronouncements by various departments on question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non justiciability on the ground of a political question's presence. The doctrine of which we treat is one of 'political questions', not of 'political cases'." In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v. Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. 59 Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction.60 With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing . In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension thereof x x x." Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al. 61 and related cases62 to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo , ergo, they present a political question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution63 declared that the Aquino government was installed through a direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character . The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987 Constitution . Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution. In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate. Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of association for purposes of human life and which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or collectively." These fundamental rights were preserved when the United States acquired jurisdiction over the Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66 Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution. These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz: "Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus."69 In this sense, freedom of speech and of assembly provides a framework in which the "conflict necessary to the progress of a society can take place without destroying the society." 70 In Hague v. Committee for Industrial Organization,71 this function of free speech and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American Bar Association which emphasized that "the basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this means talk for all and by all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that " it should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers." Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid down that "it is emphatically the province and duty of the judicial department to say what the law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the dark. II Whether or not the petitioner Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political question. Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as President. The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which provides: "Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice President shall have been elected and qualified. x x x." The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. 78 The validity of a resignation is not government by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated Malacaang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this totality test, we hold that petitioner resigned as President. To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession of events after the e xpos of Governor Singson. The Senate Blue Ribbon Committee investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in the House of Representatives which initially was given a near cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and Industry. As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire. As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap presidential election and stressed he would not be a candidate. The proposal for a snap election for president in May where he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go abroad with enough funds to support him and his family.83 Significantly, the petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace."85 This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the five-day grace period he could stay in the palace. It was a matter of time. The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner. 87 Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in the Angara Diary shows the reaction of the petitioner, viz: "x x x I explain what happened during the first round of negotiations. The President immediately stresses that he just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his name. If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.) I just want to clear my name, then I will go."88 Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation. The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened: "Opposition's deal 7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this round, I am accompanied by Dondon Bagatsing and Macel. Rene pulls out a document titled "Negotiating Points." It reads: '1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the Republic of the Philippines. 2. Beginning to day, 20 January 2001, the transition process for the assumption of the new administration shall commence, and persons designated by the Vice President to various positions and offices of the government shall start their orientation activities in coordination with the incumbent officials concerned. 3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice President as national military and police authority effective immediately. 4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the President and his family as approved by the national military and police authority (Vice President). 5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to the request to the Senate President. Our deal We bring out, too, our discussion draft which reads: The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows: '1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo. '2. In return, President Estrada and his families are guaranteed security and safety of their person and property throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee freedom from persecution or retaliation from government and the private sector throughout their natural lifetimes. This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of Staff, as approved by the national military and police authorities Vice President (Macapagal). '3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize the opening of the second envelope in the impeachment trial as proof that the subject savings account does not belong to President Estrada. '4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the 'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet officials as part of the orientation program. During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice President (Macapagal) as national military and police authorities. Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary signatures as affixed to this agreement and insure faithful implementation and observance thereof. Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner was further refined. It was then, signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful events, viz;90 "xxx 11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five points to effect a peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices in the background. Agreement. The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be effective on 24 January 2001, on which day the Vice President will assume the presidency of the Republic of the Philippines. xxx The rest of the agreement follows: 2. The transition process for the assumption of the new administration shall commence on 20 January 2001, wherein persons designated by the Vice President to various government positions shall start orientation activities with incumbent officials. '3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security of the President and his families throughout their natural lifetimes as approved by the national military and police authority Vice President. '4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national military and police authorities. '5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the contents of which shall be offered as proof that the subject savings account does not belong to the President. The Vice President shall issue a public statement in the form and tenor provided for in Annex "B" heretofore attached to this agreement. 11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and awaiting the signature of the United opposition. And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon. 'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about the agreement)?' I asked. Reyes answered: 'Wala na, sir (it's over, sir).' I ask him: Di yung transition period, moot and academic na?' And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).' Contrary to subsequent reports, I do not react and say that there was a double cross. But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot and academic. Within moments, Macel erases the first provision and faxes the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes. I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side, as it is important that the provisions on security, at least, should be respected. I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the oath to Gloria at 12 noon. The President is too stunned for words: Final meal 12 noon Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. The PSG distributes firearms to some people inside the compound. The president is having his final meal at the presidential Residence with the few friends and Cabinet members who have gathered. By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is there to protect the Palace, since the police and military have already withdrawn their support for the President. 1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's personal possessions as they can. During lunch, Ronnie Puno mentions that the president needs to release a final statement before leaving Malacaang. The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and our beloved people. MABUHAY!"' It was curtain time for the petitioner. In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacaang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind inability and that he was going to re-assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense. It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter, viz: "Sir. By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice President shall be the Acting president. (Sgd.) Joseph Ejercito Estrada" To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the cases at bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final press release. It was all too easy for him to tell the Filipino people in his press release that he was temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for the time bearing. Under any circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press release of the petitioner clearly as a later act. If, however, it was prepared after the press released, still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his reputation by the people. There is another reason why this Court cannot given any legal significance to petitioner's letter and this shall be discussed in issue number III of this Decision. After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz: "Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery." A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the period of amendments the inclusion of a provision to the effect that no public official who is under prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision was inserted as section 15:

"Sec. 15. Termination of office No public official shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under the Act or under the provisions of the Revised Penal Code on bribery. The separation or cessation of a public official form office shall not be a bar to his prosecution under this Act for an offense committed during his incumbency."93 The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the provision and insisted that the President's immunity should extend after his tenure. Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15 above became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the immunity of the President, which was one of the reasons for the veto of the original bill. There was hardly any debate on the prohibition against the resignation or retirement of a public official with pending criminal and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a protective shield to stop the investigation of a pending criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to render service for that would be a violation of his constitutional right.94 A public official has the right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution. There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner was immune from suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a sitting President. Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not be considered pending at the time petitioner resigned because the process already broke down when a majority of the senator-judges voted against the opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he resigned. III Whether or not the petitioner Is only temporarily unable to Act as President. We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Fuentebella. Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in section 11 of article VII."95 This contention is the centerpiece of petitioner's stance that he is a President on leave and respondent Arroyo is only an Acting President. An examination of section 11, Article VII is in order. It provides: "SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the VicePresident shall act as President; otherwise, the President shall continue exercising the powers and duties of his office." That is the law. Now, the operative facts: 1. 2. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and Speaker of the House; Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at about 12:30 p.m.;

3.

Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House Resolution No. 175; 96

On the same date, the House of the Representatives passed House Resolution No. 17697 which states: "RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION WHEREAS, as a consequence of the people's loss of confidence on the ability of former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police and majority of his cabinet had withdrawn support from him; WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.; WHEREAS, immediately thereafter, members of the international community had extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing and reconciliation with justice for the purpose of national unity and development; WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by reason of the constitutional duty of the House of Representatives as an institution and that of the individual members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to the people a stable, continuing government and therefore must remove all obstacles to the attainment thereof; WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of national reconciliation and solidarity as it is a direct representative of the various segments of the whole nation; WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for the House of Representatives to extend its support and collaboration to the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest demanding no less: Now, therefore, be it Resolved by the House of Representatives, To express its support to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its congratulations and to express its support for her administration as a partner in the attainment of the Nation's goals under the Constitution. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on January 24, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General" On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines; WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines qualities which merit his nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the Philippines. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on February 7, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General" (4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate signed the following: "RESOLUTION WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change and challenge; WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of purpose and resolve cohesive resolute (sic) will; WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite diversities in perspectives; WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99 On February 7, the Senate also passed Senate Resolution No. 82100 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines; WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the land which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines. Adopted, (Sgd.) AQUILINO Q. PIMENTEL JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate" On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which states: "RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus officio and has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved. Resolved, further, That the records of the Impeachment Court including the "second envelope" be transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the Senate president. Resolved, finally. That all parties concerned be furnished copies of this Resolution. Adopted, (Sgd.) AQUILINO Q. PIMENTEL, JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate" (5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.' (6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President. (7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of inability. The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as president of the Philippines. Following Taada v. Cuenco,102 we hold that this Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary authority has been delegated to the Legislative xxx branch of the government." Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of inability to discharge the power and duties of the presidency. The question is political in nature and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be decided by this Court without transgressing the principle of separation of powers. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made by a coequal branch of government cannot be reviewed by this Court. IV Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held: " The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean, either that a person injured by the executive authority by an act unjustifiable under the law has n remedy, but must submit in silence. On the contrary, it means, simply, that the governors-general, like the judges if the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties. The judiciary has full power to, and will, when the mater is properly presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who has been deprived his liberty or his property by such act. This remedy is assured to every person, however humble or of whatever country, when his personal or property rights have been invaded, even by the highest authority of the state. The thing which the judiciary can not do is mulct the GovernorGeneral personally in damages which result from the performance of his official duty, any more than it can a member of the Philippine Commission of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a case so plainly outside of his power and authority that he can not be said to have exercised discretion in determining whether or not he had the right to act. What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgement, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, in determining the question of his authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he s not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, be acts, not as Governor-General but as a private individual, and as such must answer for the consequences of his act." Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the state and for the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the integrity of government itself." 105 Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated: "The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution. In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this constitutional amendment on the existing law on executive privilege. To quote his disquisition: "In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the absolute immunity concept. First, we extended it to shield the President not only form civil claims but also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts of the President outside the scope of official duties. And third, we broadened its coverage so as to include not only the President but also other persons, be they government officials or private individuals, who acted upon orders of the President. It can be said that at that point most of us were suffering from AIDS (or absolute immunity defense syndrome)." The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a public trust. He denounced the immunity as a return to the anachronism "the king can do no wrong."107 The effort failed. The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas vis:108 "Mr. Suarez. Thank you. The last question is with reference to the Committee's omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now facing litigation's almost daily? Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez. So there is no need to express it here. Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez. On that understanding, I will not press for any more query, Madam President. I think the Commissioner for the clarifications." We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz:110 "xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgement of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped? Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts." This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure" but not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they have a different factual milieu. We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any trespasser.114 Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon, 115 US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other offenses, which were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruptio."119 it ordained that "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."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It created the office of the Ombudsman and endowed it with enormous powers, among which is to "investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust improper or inefficient."123 The Office of the Ombudsman was also given fiscal autonomy. 124 These constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency. V Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set file the criminal cases violation of his right to due process. There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases.125 The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and present danger, etc. This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that: "We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances accused's right to a fair trial for, as well pointed out, a responsible press has always been regarded as the criminal field xxx. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-togavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law and trained to

disregard off-court evidence and on-camera performances of parties to litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at a bar, the records do not show that the trial judge developed actual bias against appellants as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity, which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.' We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.130 and its companion cases, viz: "Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. xxx The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was xxx a. The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized when a shocking crime occurs a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility and emotion. To work effectively, it is important that society's criminal process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. The freedoms of speech. Press and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedom such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which the draftsmen deliberately linked it. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. Even though the Constitution contains no provision which be its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press be eviscerated.

b.

c.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis supplied) Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to show more weighty social science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner.1wphi1.nt The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs."132 News reports have also been quoted to

establish that the respondent Ombudsman has already prejudged the cases of the petitioner 133 and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias of their superior. Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigation prosecutors the independence to make their own findings and recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can not be compelled cases which they believe deserve dismissal. In other words, investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court. VI. Epilogue A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial which has been categorized as the "most fundamental of all freedoms."135 To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best form of government, it is because it has respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's progress from the cave to civilization. Let us not throw away that key just to pander to some people's prejudice. IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 162215 July 30, 2007

OFFICE OF THE OMBUDSMAN, Petitioner, vs. CIVIL SERVICE COMMISSION, Respondent. DECISION CORONA, J.: This Court is once again called upon to settle a controversy between two independent constitutional bodies and delineate the limits of their respective powers. In the exercise of its mandate, this Court reaffirms its commitment to constitutionalism and the rule of law. This controversy traces its roots to Ombudsman Simeon V. Marcelos letter1 dated July 28, 2003 to the Civil Service Commission (CSC) requesting the approval of the amendment of qualification standards for Director II positions in the Central Administrative Service and Finance and Management Service of the Office of the Ombudsman. The letter read: This is in relation to the career positions of Director II of the Central Administrative Service and the Finance and Management Service of this Office. The qualification standards set for said Director II positions pursuant to Civil Service Commission Memorandum Circular No. 1 dated January 24, 1997 are as follows: Bachelors degree

Education

Experience

3 years of supervisory experience

Training

None required.

Eligibility

Career Service Executive Eligibility (CSEE)/Career Executive Service (CES)

The requirement for a Civil Service Executive Eligibility (CSEE)/Career Executive Service (CES) eligibility presupposes that the Director II position belongs to the third level and positions therein are covered by the Career Executive Service. However, in the Decision of the Court of Appeals dated January 18, 2001 on CA-G.R. SP No. 49699 as affirmed by the Supreme Court with finality on July 2, 2002 in G.R. No. 148782 entitled "Khem N. Inok vs. Civil Service Commission", it is stated in said Decision that the letter and intent of the law is to circumscribe the Career Executive Service (CES) to CES positions in the Executive Branch of Government, and that the Judiciary, the Constitutional Commissions, the Office of the Ombudsman and the Commission on Human Rights are not covered by the CES governed by the Career Executive Service Board. Said Decision effectively granted the petition of Mr. Inok for security of tenure as Director III of the Commission on Audit despite the absence of a CES eligibility. Accordingly and consistent with the provision of Section 22(2), please be advised that the Office of the Ombudsman has established the qualification standards for the positions of Director II of the Central Administrative Service and Finance Management Service as follows: Bachelors degree

Education

Experience

3 years of supervisory experience

Training

None required.

Eligibility

Career Service Professional/ Relevant Eligibility for Second Level Position

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

Acting thereon, the CSC issued Opinion No. 44, s. 2004 3 dated January 23, 2004 disapproving the request. This refers to [the Office of the Ombudsmans] proposed qualification standards (QS) for Director II position in the Central Administrative Service and Finance Management Service, Office of the Ombudsman, which was forwarded to this Office by Director Agnes Padilla of CSC-NCR. Invoking the Decision of the Court of Appeals in the Inok case, that Office established the QS for the position of Director II of the Central Administrative Service and Finance Management [Service], as follows: Bachelors degree

Education

Experience

3 years of supervisory experience

Training

None required.

Eligibility

Career Service Professional/ Relevant Eligibility for Second Level position

Under the 1997 Revised Qualification Standards Manual, the qualification requirements for Director II positions are as follows: Bachelors degree

Education

Experience

3 years of supervisory experience

Training

None required.

Eligibility

Career Service Executive Eligibility (CSEE)/Career Executive Service (CES)

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

The Office of the Ombudsman, claiming that its constitutional and statutory powers were unduly curtailed, now seeks to set aside and nullify CSC Opinion No. 44, s. 2004 via this petition for certiorari.6 The Office of the Ombudsman asserts that its specific, exclusive and discretionary constitutional and statutory power as an independent constitutional body to administer and supervise its own officials and personnel, including the authority to administer competitive examinations and prescribe reasonable qualification standards for its own officials, cannot be curtailed by the general power of the CSC to administer the civil service system. Any unwarranted and unreasonable restriction on its discretionary authority, such as what the CSC did when it issued Opinion No. 44, s. 2004, is constitutionally and legally infirm. We agree with the Office of the Ombudsman. The CSCs opinion that the Director II positions in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman are covered by the CES is wrong. Book V, Title I, Subtitle A, Chapter 2, Section 7 of EO 7 292, otherwise known as "The Administrative Code of 1987," provides: SECTION 7. Career Service. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include: (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; xxx xxx x x x (emphasis supplied)

Thus, the CES covers presidential appointees only. As this Court ruled in Office of the Ombudsman v. CSC: 8 From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are presidential appointees. x x x (emphasis supplied) Under the Constitution, the Ombudsman is the appointing authority for all officials and employees of the Office of the Ombudsman, except the Deputy Ombudsmen.9 Thus, a person occupying the position of Director II in the Central Administrative Service or Finance and Management Service of the Office of the Ombudsman is appointed by the Ombudsman, not by the President. As such, he is neither embraced in the CES nor does he need to possess CES eligibility.10 To classify the positions of Director II in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman as covered by the CES and require appointees thereto to acquire CES or CSE11 eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will result either in (1) vesting the appointing power for said position in the President, in violation of the Constitution or (2) including in the CES a position not held by a presidential appointee, contrary to the Administrative Code. 12 Section 6, Article XI of the Constitution provides: Sec. 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law. This is complemented by RA13 6770, otherwise known as "The Ombudsman Act of 1989." Section 11 thereof states: Sec. 11. Structural Organization. The authority and responsibility for the exercise of the mandate of the Office of the Ombudsman and for the discharge of its power and functions shall be vested in the Ombudsman, who shall have supervision and control of the said Office. (1) The Office of the Ombudsman may organize such directorates for administration and allied services as may be necessary for the effective discharge of its functions. Those appointed as directors or heads shall have the rank and salary of line bureau directors. xxx xxx xxx

(5) The position structure and staffing pattern of the Office of the Ombudsman, including the Office of the Special Prosecutor, shall be approved and prescribed by the Ombudsman. The Ombudsman shall appoint all officers and employees of the Office of the Special Prosecutor, in accordance with the civil service law, rules and regulations. (emphasis supplied) Under the Constitution, the Office of the Ombudsman is an independent body. 14 As a guaranty of this independence, the Ombudsman has the power to appoint all officials and employees of the Office of the Ombudsman, except his deputies. 15 This power necessarily includes the power of setting, prescribing and administering the standards for the officials and personnel of the Office.

To further ensure its independence, the Ombudsman has been vested with the power of administrative control and supervision of the Office. This includes the authority to organize such directorates for administration and allied services as may be necessary for the effective discharge of the functions of the Office, as well as to prescribe and approve its position structure and staffing pattern. Necessarily, it also includes the authority to determine and establish the qualifications, duties, functions and responsibilities of the various directorates and allied services of the Office. This must be so if the constitutional intent to establish an independent Office of the Ombudsman is to remain meaningful and significant. Qualification standards are used as guides in appointment and other personnel actions, in determining training needs and as aid in the inspection and audit of the personnel work programs.16 They are intimately connected to the power to appoint as well as to the power of administrative supervision. Thus, as a corollary to the Ombudsmans appointing and supervisory powers, he possesses the authority to establish reasonable qualification standards for the personnel of the Office of the Ombudsman.1avvphil In this connection, Book V, Title I, Subtitle A, Chapter 5, Section 2217 of the Administrative Code provides: SEC. 22. Qualification Standards. (1) A qualification standard expresses the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. The degree of qualifications of an officer or employee shall be determined by the appointing authority on the basis of the qualification standard for the particular position. Qualification standards shall be used as basis for civil service examinations for positions in the career service, as guides in appointment and other personnel actions, in the adjudication of protested appointments, in determining training needs, and as aid in the inspection and audit of the agen cies personnel work programs. It shall be administered in such manner as to continually provide incentives to officers and employees towards professional growth and foster the career system in the government service. (2) The establishment, administration and maintenance of qualification standards shall be the responsibility of the department or agency, with the assistance and approval of the Civil Service Commission and in consultation with the Wage and Position Classification Office. (emphasis supplied) Since the responsibility for the establishment, administration and maintenance of qualification standards lies with the concerned department or agency, the role of the CSC is limited to assisting the department or agency with respect to these qualification standards and approving them. The CSC cannot substitute its own standards for those of the department or agency, specially in a case like this in which an independent constitutional body is involved. Accordingly, the petition is hereby GRANTED and Opinion No. 44, s. 2004 dated January 23, 2004 of the Civil Service Commission is SET ASIDE. The Civil Service Commission is hereby ordered to approve the amended qualification standards for Director II positions in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 180700 March 4, 2008

GERARDO R. VILLASEOR and RODEL A. MESA, Petitioners, vs. SANDIGANBAYAN (5th Division) and LOUELLA MAE OCO-PESQUERRA (Office of the Special Prosecutor, Ombudsman), Respondents. RESOLUTION REYES, R.T., J.: DOES preventive suspension in an administrative proceeding bar preventive suspension in a criminal case founded on the same facts and circumstances? The question is posed in this petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. Petitioners seek to annul and set aside the Sandiganbayan 1 Resolution2 of July 3, 2007 in Criminal Case No. 27756 for violation of Section 3, Republic Act (R.A.) No. 3019, 3 as amended, suspending them pendente lite. Also assailed is the October 10, 2007 Resolution4 denying their motion for reconsideration. Factual Antecedents On August 18, 2001, disaster struck. In the wee hours of the morning, the Quezon City Manor Hotel went ablaze resulting in the death of seventy-four (74) people and injuries to scores of others. Investigation into the tragedy revealed that the hotel was a veritable fire trap. Petitioners, together with other officials of the City Engineering Office of Quezon City, are presently facing criminal charges before the 5th Division of the Sandiganbayan for the crime of multiple homicide through reckless imprudence and for violation of Section 3(e) of R.A. No. 3019. They were also charged administratively with gross negligence, gross misconduct and conduct prejudicial to the interest of the service in connection with the Manor Hotel inferno. In two separate Orders dated August 29, 20015 and September 7, 20016 in the administrative case, petitioners Villaseor and Mesa were preventively suspended for a period of six (6) months, effective upon receipt of the suspension order. On September 20, 2006, during the pendency of the criminal case, respondent special prosecutor Louella Mae Oco-Pesquera filed a motion for suspension pendente lite7 of petitioners. Petitioners opposed8 the motion, contending that they had already been suspended for six (6) months relative to the administrative case, based on the same facts and circumstances. They posited that any preventive suspension that may be warranted in the criminal case was already absorbed by the preventive suspension in the administrative case because both the criminal and administrative cases were anchored on the same set of facts. In the assailed Resolution9 of July 3, 2007, respondent court granted the prosecutions motion for suspension. It ordered the suspension of petitioners f or a period of ninety (90) days. The dispositive portion reads, thus: WHEREFORE, in light of the foregoing, accused Romeo M. Montallana, Romualdo C. Santos, Gerardo R. Villaseor, and Rodel A. Mesa are hereby suspended from their respective public positions as earlier enumerated, and from any other public office which they may now or hereafter be holding for a period of ninety (90) days from receipt of this resolution, unless a motion for reconsideration is seasonably filed. While the prosecution sought to suspend accused Alfredo N. Macapugay, it appears, however, that he was already dismissed from the service, hence, he can no longer be subjected to this suspension order. Let a copy of this resolution be furnished Honorable Feliciano Belmonte, Quezon City Mayor for implementation of this suspension. He is hereby requested to inform this Court of his action thereon within five (5) days from receipt of this resolution. The suspension of the accused shall be automatically lifted upon the expiration of the ninety-day period from the time of the implementation of this resolution. SO ORDERED.10 In the equally assailed Resolution11 of October 10, 2007, petitioners motion for reconsideration was denied for lack of merit. Issue Petitioners have resorted to the present recourse, hoisting the lone issue of "WHETHER OR NOT THE PUBLIC RESPONDENT ACTED IN EXCESS OF JURISDICTION AND/OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN ORDERING THE SUSPENSION PENDENTE LITE OF HEREIN PETITIONERS DESPITE THE FACT THAT THEY HAD ALREADY BEEN PREVIOUSLY SUSPENDED ADMINISTRATIVELY BASED ON THE SAME FACTS AND CIRCUMSTANCES. 12 Our Ruling

Mandatory nature of preventive suspension It is well-settled that preventive suspension under Section 13 of R.A. No. 3019 is mandatory. It is evident from the very wording of the law: Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon the government or public funds or property, whether as a simple or as a complex offense and in whatever stage of the execution and mode of participation, is pending in court, shall be suspended from office. x x x (Underscoring supplied) A whole slew of cases reinforce this provision of law. In Luciano v. Provincial Governor,13 the Court pronounced that suspension of a public officer under Section 13 of R.A. No. 3019 is mandatory. This was reiterated in Luciano v. Mariano,14 People v. Albano,15 Gonzaga v. Sandiganbayan16 and Bunye v. Escareal.17 In the last mentioned case, the Court said: Adverting to this Courts observation in Ganzon v. CA, 200 SCRA 271, 272, that the sole objective of an administrative suspension is "to prevent the accused from hampering the normal course of the investigation with his influence and authority over possible witnesses or to keep him off the records and other evidence" and "to assist prosecutors in firming up a case, if any, against an erring official," the petitioners insist that as no such reason for their suspension exists, then the order suspending them should be set aside as a grave abuse of the courts discretion. xxxx The Court finds no merit in those arguments. Section 13 of R.A. No. 3019, as amended, unequivocally provides that the accused public officials " shall be suspended from office" while the criminal prosecution is pending in court. In Gonzaga v. Sandiganbayan, 201 SCRA 417, 422, 426, this Court ruled that such preventive suspension is mandatory; there are no ifs and buts about it.18 (Underscoring supplied) Again, in Bolastig v. Sandiganbayan,19 the Court stressed the mandatory nature of preventive suspension as follows: x x x It is now settled that Sec. 13 of Republic Act No. 3019 makes it mandatory for the Sandiganbayan to suspend any public official against whom a valid information charging violation of that law, Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property is filed. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continuing committing malfeasance in office. The presumption is that unless the accused is suspended he may frustrate his prosecution or commit further acts of malfeasance or do both, in the same way that upon a finding that there is probable cause to believe that a crime has been committed and that the accused is probably guilty thereof, the law requires the judge to issue a warrant for the arrest of the accused. The law does not require the court to determine whether the accused is likely to escape or evade the jurisdiction of the court. 20 (Underscoring supplied) Clearly, there can be no doubt as to the validity of the Sandiganbayans suspension of petitioners in connection with the pending criminal case before it. It was merely doing what was required of it by law. Criminal and administrative cases separate and distinct Significantly, there are three kinds of remedies that are available against a public officer for impropriety in the performance of his powers and the discharge of his duties: (1) civil, (2) criminal, and (3) administrative. These remedies may be invoked separately, alternately, simultaneously or successively. Sometimes, the same offense may be the subject of all three kinds of remedies.21 Defeat of any of the three remedies will not necessarily preclude resort to other remedies or affect decisions reached thereunder, as different degrees of evidence are required in these several actions. In criminal cases, proof beyond reasonable doubt is needed whereas a mere preponderance of evidence will suffice in civil cases.22 In administrative proceedings, only substantial evidence is required. It is clear, then, that criminal and administrative cases are distinct from each other.23 The settled rule is that criminal and civil cases are altogether different from administrative matters, such that the first two will not inevitably govern or affect the third and vice versa.24 Verily, administrative cases may proceed independently of criminal proceedings.25 Socrates v. Sandiganbayan,26 citing the Courts pronouncements in Luciano v. Provincial Governor,27 recounted: The Court then hastened to clarify that such a view may not be taken as an encroachment upon the power of suspension given other officials, reiterating in the process that a line should be drawn between administrative proceedings and criminal actions in court, that one is apart from the other. x x x28 (Underscoring supplied) Based on the foregoing, criminal actions will not preclude administrative proceedings, and vice-versa, insofar as the application of the law on preventive suspension is concerned. Preventive suspension not a penalty Imposed during the pendency of proceedings, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from office. Thus, preventive suspension is distinct from the penalty. While the former may be imposed on a respondent during the investigation of the charges against him, the latter may be meted out to him at the final disposition of the case. 29 The Courts discussion in Quimbo v. Gervacio30 is enlightening:

Jurisprudential law establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have different ends sought to be achieved. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty. 1avvphi1 That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws. Sec. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a preventive measure. 31 The accused public officers whose culpability remains to be proven are entitled to the constitutional presumption of innocence. 32 The law itself provides for the reinstatement of the public officer concerned and payment to him of the salaries and benefits for the duration of the suspension in the event of an acquittal: Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon the government or public funds or property, whether as a simple or as a complex offense and in whatever stage of the execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement and gratuity benefits under the law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. 33 (Underscoring supplied) Sec. 13 of R.A. No. 3019 not a penal provision but a procedural one It is petitioners contention that as a penal statute, the provision on preventive suspension should be strictly construed ag ainst the State and liberally in their favor. We cannot agree. Section 13 of R.A. No. 3019 on preventive suspension is not a penal provision. It is procedural in nature. Hence, the strict construction rule finds no application. The Court expounded on this point in Buenaseda v. Flavier:34 Penal statutes are strictly construed while procedural statutes are liberally construed (Crawford, Statutory Construction, Interpretation of Laws, pp. 460-461; Lacson v. Romero, 92 Phil. 456 [1953]). The test in determining if a statute is penal is whether a penalty is imposed for the punishment of a wrong to the public or for the redress of an injury to an individual (59 Corpuz Juris, Sec. 658; Crawford, Statutory Construction, pp. 496-497). A Code prescribing the procedure in criminal cases is not a penal statute and is to be interpreted liberally (People v. Adler, 140 N.Y. 331; 35 N.E. 644).35 (Underlining supplied) As We have already established, preventive suspension is not, in actual fact, a penalty at all. It is a procedural rule. Automatic lift of suspension after ninety (90) days It must be borne in mind that the preventive suspension of petitioners will only last ninety (90) days, not the entire duration of the criminal case like petitioners seem to think. Indeed, it would be constitutionally proscribed if the suspension were to be of an indefinite duration or for an unreasonable length of time. The Court has thus laid down the rule that preventive suspension may not exceed the maximum period of ninety (90) days, in consonance with Presidential Decree No. 807,36 now Section 52 of the Administrative Code of 1987.37 Even the dispositive portion itself of the assailed July 3, 2007 Resolution 38 could not be any clearer: WHEREFORE, x x x. xxxx The suspension of the accused shall be automatically lifted upon the expiration of the ninety-day period from the time of the implementation of this resolution. SO ORDERED.39 In fine, the preventive suspension against petitioners must be upheld, as the Sandiganbayan committed no grave abuse of discretion. WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 86439 April 13, 1989 MARY CONCEPCION BAUTISTA, petitioner, vs. SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R. MALLILLIN, respondents. Mary Concepcion Bautista for and in her own behalf. Christine A.Tomas Espinosa for private respondent Hesiquio R. Mallillin

PADILLA, J.: The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the question of which appointments by the President, under the 1987 Constitution, are to be made with and without the review of the Commission on Appointments. The Mison case was the first major case under the 1987 Constitution and in construing Sec. 16, Art. VII of the 1987 Constitution which provides: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and the country's experience under the 1935 and 1973 Constitutions, held that only those appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by the Commission on Appointments, namely, "the heads of the executive department, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution." All other appointments by the President are to be made without the participation of the Commission on Appointments. Accordingly, in the Mison case, the appointment of therein respondent Salvador M. Mison as head of the Bureau of Customs, without the confirmation of the Commission on Appointments, was held valid and in accordance with the Constitution. The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec. 16, Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as construed by this Court in appropriate cases, is the supreme law of the land. And it cannot be over-stressed that the strength of the Constitution, with all its imperfections, lies in the respect and obedience accorded to it by the people, especially the officials of government, who are the subjects of its commands. Barely a year after Mison, the Court is again confronted with a similar question, this time, whether or not the appointment by the President of the Chairman of the Commission on Human Rights (CHR), an "independent office" created by the 1987 Constitution, is to be made with or without the confirmation of the Commission on Appointments (CA, for brevity). Once more, as in Mison, the Court will resolve the issue irrespective of the parties involved in the litigation, mindful that what really matters are the principles that will guide this Administration and others in the years to come. Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation of the Commission on Appointments, it follows that the appointment by the President of the Chairman of the (CHR), is to be made without the review or participation of the Commission on Appointments. To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly vested by the Constitution in the President with the consent of the Commission on Appointments. 2 The President appoints the Chairman and Members of the Commission on Human Rights pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because they are among the officers of government "whom he (the President) may be authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the Commission on Human Rights. It provides: (c) The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. The above conclusions appear to be plainly evident and, therefore, irresistible. However, the presence in this case of certain elements absent in the Mison case makes necessary a closer scrutiny. The facts are therefore essential.

On 27 August 1987, the President of the Philippines designated herein petitioner Mary Concepcion Bautista as "Acting Chairman, Commission on Human Rights." The letter of designation reads: 27 August 1987 M a d a m: You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes. Very truly yours, CORAZON C. AQUINO HON. MARY CONCEPCION BAUTISTA 3 Realizing perhaps the need for a permanent chairman and members of the Commission on Human Rights, befitting an independent office, as mandated by the Constitution, 4 the President of the Philippines on 17 December 1988 extended to petitioner Bautista a permanent appointment as Chairman of the Commission. The appointment letter is as follows: 17 December 1988 The Honorable The Chairman Commission on Human Rights Pasig, Metro Manila M a d a m: Pursuant to the provisions of existing laws, the following are hereby appointed to the positions indicated opposite their respective names in the Commission on Human Rights: MARY CONCEPCION BAUTISTA Chairman ABELARDO L. APORTADERA, JR Member SAMUEL SORIANO Member HESIQUIO R. MALLILLIN Member NARCISO C. MONTEIRO Member By virtue hereof, they may qualify and enter upon the performance of the duties of the office furnishing this Office and the Civil Service Commission with copies of their oath of office. Very truly yours, CORAZON C. AQUINO It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the President that she could qualify and enter upon the performance of the duties of the office of Chairman of the Commission on Human Rights, requiring her to furnish the office of the President and the Civil Service Commission with copies of her oath of office. On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner Bautista took her oath of office by virtue of her appointment as Chairman of the Commission on Human Rights. The full text of the oath of office is as follows: OATH OF OFFICE I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal, Makati, Metro Manila having been appointed to the position of CHAIRMAN of the Commission on Human Rights, do solemnly swear that I will discharge to the best of my ability all the duties and responsibilities of the office to which I have been appointed; uphold the Constitution of the Republic of the Philippines, and obey all the laws of the land without mental reservation or purpose of evasion. SO HELP ME GOD. MARY CONCEPCION BAUTISTA SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of Our Lord, 1988 in Manila. MARCELO B. FERNAN

Chief Justice Supreme Court of the Philippines Immediately, after taking her oath of office as Chairman of the Commission on Human Rights, petitioner Bautista discharged the functions and duties of the Office of Chairman of the Commission on Human Rights which, as previously stated, she had originally held merely in an acting capacity beginning 27 August 1987. On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission on Appointments requesting her to submit to the Commission certain information and documents as required by its rules in connection with the confirmation of her appointment as Chairman of the Commission on Human Rights. 7 On 10 January 1989, the Commission on Appointments' Secretary again wrote petitioner Bautista requesting her presence at a meeting of the Commission on Appointments Committee on Justice, Judicial and Bar Council and Human Rights set for 19 January 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that would deliberate on her appointment as Chairman of the Commission on Human Rights. 8 On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on Appointments stating, for the reasons therein given, why she considered the Commission on Appointments as having no jurisdiction to review her appointment as Chairman of the Commission on Human Rights. The petitioner's letter to the Commission on Appointments' Chairman reads: January 13, 1989 SENATE PRESIDENT JOVITO R. SALONGA Chairman Commission on Appointments Senate, Manila S i r: We acknowledge receipt of the communication from the Commission on Appointments requesting our appearance on January 19, 1989 for deliberation on our appointments. We respectfully submit that the appointments of the Commission commissioners of the Human Rights Commission are not subject to confirmation by the Commission on Appointments. The Constitution, in Article VII Section 16 which expressly vested on the President the appointing power, has expressly mentioned the government officials whose appointments are subject to the confirmation of the Commission on Appointments of Congress. The Commissioners of the Commission on Human Rights are not included among those. Where the confirmation of the Commission on Appointments is required, as in the case of the Constitutional Commissions such as the Commission on Audit, Civil Service Commission and the Commission on Elections, it was expressly provided that the nominations will be subject to confirmation of Commission on Appointments. The exclusion again of the Commission on Human Rights, a constitutional office, from this enumeration is a clear denial of authority to the Commission on Appointments to review our appointments to the Commission on Human Rights. Furthermore, the Constitution specifically provides that this Commission is an independent office which: a. must investigate all forms of human rights violations involving civil and political rights; b. shall monitor the government's compliance in all our treaty obligations on human rights. We submit that, the monitoring of all agencies of government, includes even Congress itself, in the performance of its functions which may affect human rights; c. may call on all agencies of government for the implementation of its mandate. The powers of the Commission on Appointments is in fact a derogation of the Chief Executive's appointing power and therefore the grant of that authority to review a valid exercise of the executive power can never be presumed. It must be expressly granted. The Commission on Appointments has no jurisdiction under the Constitution to review appointments by the President of Commissioners of the Commission on Human Rights. In view of the foregoing considerations, as Chairman of an independent constitutional office. I cannot submit myself to the Commission on Appointments for the purpose of confirming or rejecting my appointment. Very truly yours, MARY CONCEPCION BAUTISTA Chairman In respondent Commission's comment (in this case), dated 3 February 1989, there is attached as Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon. Catalino Macaraig, Jr. making reference to the "ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista

on 14 January 1989 as Chairperson of the Commission on Human Rights" 10 and informing Secretary Macaraig that, as previously conveyed to him in a letter of 25 January 1989, the Commission on Appointments disapproved petitioner Bautista's "ad interim appointment' as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments. The letter reads: 1 February 1989 HON. CATALINO MACARAIG, JR. Executive Secretary Malacanang, Manila S i r: This refers to the ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights. As we conveyed to you in our letter of 25 January 1989, the Commission on Appointments, assembled in plenary (session) on the same day, disapproved Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments. This is to inform you that the Commission on Appointments, likewise assembled in plenary (session) earlier today, denied Senator Mamintal A. J. Tamano's motion for reconsideration of the disapproval of Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights.

Very truly yours, RAOUL V. VICTORINO Secretary On the same date (1 February 1989), the Commission on Appointments' Secretary informed petitioner Bautista that the motion for reconsideration of the disapproval of her "ad interim appointment as Chairman of the Commission on Human Rights" was denied by the Commission on Appointments. The letter reads as follows: 1 February 1989 ATTY. MARY CONCEPCION BAUTISTA Commission on Human Rights Integrated Bar of the Philippines Bldg. Pasig, Metro Manila Dear Atty. Bautista: Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments, the denial by the Commission on Appointments, assembled in plenary (session) earlier today, of Senator Mamintal A.J. Tamano's motion for reconsideration of the disapproval of your ad interim appointment as Chairperson of the Commission on Human Rights is respectfully conveyed. Thank you for your attention. Very truly yours, RAOUL V. VICTORINO Secretary In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the President had designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of the Commission" pending the resolution of Bautista's case which had been elevated to the Supreme Court. The news item is here quoted in full, thus Aquino names replacement for MaryCon President Aquino has named replacement for Presidential Commission on Human Rights Chairman Mary Concepcion Bautista whose appointment was rejected anew by the Congressional commission on appointments. The President designated PCHR commissioner Hesiquio R. Mallillin as acting chairman of the Commission pending the resolution of Bautista's case which had been elevated to the Supreme Court.

The President's action followed after Congressional Commission on Appointments Chairman, Senate President Jovito Salonga declared Bautista can no longer hold on to her position after her appointment was not confirmed for the second time. For all practical purposes, Salonga said Bautista can be accused of usurpation of authority if she insists to stay on her office. In effect, the President had asked Bautista to vacate her office and give way to Mallillin (Mari Villa) 13 On 20 January 1989, or even before the respondent Commission on Appointments had acted on her " ad interim appointment as Chairman of the Commission on Human Rights" petitioner Bautista filed with this Court the present petition for certiorari with a prayer for the immediate issuance of a restraining order, to declare "as unlawful and unconstitutional and without any legal force and effect any action of the Commission on Appointments as well as of the Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended appointment of the petitioner as Chairman of the Commission on Human Rights, on the ground that they have no lawful and constitutional authority to confirm and to review her appointment." 14 The prayer for temporary restraining order was "to enjoin the respondent Commission on Appointments not to proceed further with their deliberation and/or proceedings on the appointment of the petitioner ... nor to enforce, implement or act on any order, resolution, etc. issued in the course of their deliberations." 15 Respondents were required to file comment within ten (10) days. 16 On 7 February 1989, petitioner filed an amended petition, with urgent motion for restraining order, impleading Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent and praying for the nullification of his appointment. The succeeding day, a supplemental urgent ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to exercise the functions of chairman and to refrain from demanding courtesy resignations from officers or separating or dismissing employees of the Commission. Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court resolved to issue a temporary restraining order directing respondent Mallillin to cease and desist from effecting the dismissal, courtesy resignation, i removal and reorganization and other similar personnel actions. 17 Respondents were likewise required to comment on said amended petition with allowance for petitioner to file a reply within two (2) days from receipt of a copy thereof. Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC and Human Rights filed a comment to the amended petition on 21 February 1989. 18 Petitioner filed her reply. 19 On 24 February 1989, respondent Mallillin filed a separate comment. 20 The Court required petitioner to reply to respondent Mallillin's comment . 21 Petitioner filed her reply. 22 In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-equal branch of government, the Court did not issue a temporary restraining order directed against it. However, this does not mean that the issues raised by the petition, as met by the respondents' comments, will not be resolved in this case. The Court will not shirk from its duty as the final arbiter of constitutional issues, in the same way that it did not in Mison. As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was extended by Her Excellency, the President a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988. Before this date, she was merely the "Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an appointment that was for the President solely to make, i.e., not an appointment to be submitted for review and confirmation (or rejection) by the Commission on Appointments. This is in accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison which is here reiterated. The threshold question that has really come to the fore is whether the President, subsequent to her act of 17 December 1988, and after petitioner Bautista had qualified for the office to which she had been appointed, by taking the oath of office and actually assuming and discharging the functions and duties thereof, could extend another appointment to the petitioner on 14 January 1989, an "ad interim appointment" as termed by the respondent Commission on Appointments or any other kind of appointment to the same office of Chairman of the Commission on Human Rights that called for confirmation by the Commission on Appointments. The Court, with all due respect to both the Executive and Legislative Departments of government, and after careful deliberation, is constrained to hold and rule in the negative. When Her Excellency, the President converted petitioner Bautista's designation as Acting Chairman to a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988, significantly she advised Bautista (in the same appointment letter) that, by virtue of such appointment, she could qualify and enter upon the performance of the duties of the office (of Chairman of the Commission on Human Rights). All that remained for Bautista to do was to reject or accept the appointment. Obviously, she accepted the appointment by taking her oath of office before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the functions and duties of the Chairman of the Commission on Human Rights. Bautista's appointment therefore on 17 December 1988 as Chairman of the Commission on Human Rights was a completed act on the part of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of Marbury vs. Madison. 23 xxx xxx xxx The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him. xxx xxx xxx Some point of time must be taken when the power of the executive over an officer, not removable at his will must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. .... xxx xxx xxx But having once made the appointment, his (the President's) power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.

xxx xxx xxx THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989 It is respondent Commission's submission that the President, after the appointment of 17 December 1988 extended to petitioner Bautista, decided to extend another appointment (14 January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately, nomination) to the Commission on Appointments for confirmation. And yet, it seems obvious enough, both in logic and in fact, that no new or further appointment could be made to a position already filled by a previously completed appointment which had been accepted by the appointee, through a valid qualification and assumption of its duties. Respondent Commission vigorously contends that, granting that petitioner's appointment as Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within the president's prerogative to voluntarily submit such appointment to the Commission on Appointment for confirmation. The mischief in this contention, as the Court perceives it, lies in the suggestion that the President (with Congress agreeing) may, from time to time move power boundaries, in the Constitution differently from where they are placed by the Constitution. The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin with, is concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the Executive nor the Legislative (Commission on Appointments) can create power where the Constitution confers none. The evident constitutional intent is to strike a careful and delicate balance, in the matter of appointments to public office, between the President and Congress (the latter acting through the Commission on Appointments). To tilt one side or the other of the scale is to disrupt or alter such balance of power. In other words, to the extent that the Constitution has blocked off certain appointments for the President to make with the participation of the Commission on Appointments, so also has the Constitution mandated that the President can confer no power of participation in the Commission on Appointments over other appointments exclusively reserved for her by the Constitution. The exercise of political options that finds no support in the Constitution cannot be sustained. Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited power to review presidential appointments, create power to confirm appointments that the Constitution has reserved to the President alone. Stated differently, when the appointment is one that the Constitution mandates is for the President to make without the participation of the Commission on Appointments, the executive's voluntary act of submitting such appointment to the Commission on Appointments and the latter's act of confirming or rejecting the same, are done without or in excess of jurisdiction. EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14 JANUARY 1989 Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily allow the Commission on Appointments to exercise the power of review over an appointment otherwise solely vested by the Constitution in the President. Yet, as already noted, when the President appointed petitioner Bautista on 17 December 1988 to the position of Chairman of the Commission on Human Rights with the advice to her that by virtue of such appointment (not, until confirmed by the Commission on Appointments), she could qualify and enter upon the performance of her duties after taking her oath of office, the presidential act of appointment to the subject position which, under the Constitution, is to be made, in the first place, without the participation of the Commission on Appointments, was then and there a complete and finished act, which, upon the acceptance by Bautista, as shown by her taking of the oath of office and actual assumption of the duties of said office, installed her, indubitably and unequivocally, as the lawful Chairman of the Commission on Human Rights for a term of seven (7) years. There was thus no vacancy in the subject office on 14 January 1989 to which an appointment could be validly made. In fact, there is no vacancy in said office to this day. Nor can respondents impressively contend that the new appointment or re-appointment on 14 January 1989 was an ad interim appointment, because, under the Constitutional design, ad interim appointments do not apply to appointments solely for the President to make, i.e., without the participation of the Commission on Appointments. Ad interim appointments, by their very nature under the 1987 Constitution, extend only to appointments where the review of the Commission on Appointments is needed. That is why ad interim appointments are to remain valid until disapproval by the Commission on Appointments or until the next adjournment of Congress; but appointments that are for the President solely to make, that is, without the participation of the Commission on Appointments, can not be ad interim appointments. EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL. Respondent Mallillin contends that with or without confirmation by the Commission on Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights, can be removed from said office at anytime, at the pleasure of the President; and that with the disapproval of Bautista's appointment (nomination) by the Commission on Appointments, there was greater reason for her removal by the President and her replacement with respondent Mallillin Thus, according to respondent Mallillin the petition at bar has become moot and academic. We do not agree that the petition has become moot and academic. To insist on such a posture is akin to deluding oneself that day is night just because the drapes are drawn and the lights are on. For, aside from the substantive questions of constitutional law raised by petitioner, the records clearly show that petitioner came to this Court in timely manner and has not shown any indication of abandoning her petition. Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of which is as follows: WHEREAS, the Constitution does not prescribe the term of office of the Chairman and Members of the Commission on Human Rights unlike those of other Constitutional Commissions; NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do hereby order: SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby amended to read as follows:

The Chairman and Members of the Commission on Human Rights shall be appointed by the President. Their tenure in office shall be at the pleasure of the President. SEC. 2. This Executive Order shall take effect immediately. DONE in the City of Manila, this 30th day of June, in the year of Our Lord, nineteen hundred and eighty-seven. (Sgd.) CORAZON C. AQUINO President of the Philippines By the President: (Sgd.) JOKER P. ARROYO Executive Secretary Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25 was issued by the President, Sec. 2(c) of which provides: Sec. 2(c). The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment. Appointments to any vacancy shall be only for the unexpired term of the predecessor. It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the Chairman and Members of the Commission on Human Rights which is seven (7) years without reappointment the later executive order (163-A) speaks of the tenure in office of the Chairman and Members of the Commission on Human Rights, which is "at the pleasure of the President." Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice) Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated: The distinction between "term" and "tenure" is important, for, pursuant to the Constitution, "no officer or employee in the Civil Service may be removed or suspended except for cause, as provided by law" (Art. XII, section 4), and this fundamental principle would be defeated if Congress could legally make the tenure of some officials dependent upon the pleasure of the President, by clothing the latter with blanket authority to replace a public officer before the expiration of his term. 27 When Executive Order No. 163 was issued, the evident purpose was to comply with the constitutional provision that "the term of office and other qualifications and disabilities of the Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII, 1987 Constitution). As the term of office of the Chairman (and Members) of the Commission on Human Rights, is seven (7) years, without reappointment, as provided by Executive Order No. 163, and consistent with the constitutional design to give the Commission the needed independence to perform and accomplish its functions and duties, the tenure in office of said Chairman (and Members) cannot be later made dependent on the pleasure of the President. Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because the power of the President, sustained therein, to replace a previously appointed vice-mayor of Roxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas) stating that the vice-mayor shall serve at the pleasure of the President, can find no application to the Chairman of an INDEPENDENT OFFICE, created not by statute but by the Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed that the Chairman and Members of the Commission on Human Rights shall have a "term of office." Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the Constitution to be independent as the Commission on Human Rights-and vested with the delicate and vital functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as well as remedial measures therefor, can truly function with independence and effectiveness, when the tenure in office of its Chairman and Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the constitutional mandate of independence for the Commission on Human Rights has to be declared unconstitutional. The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point to its being plainly at war with the constitutional intent of independence for the Commission. Thus MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this body to be constitutionalized is the fact that regardless of who is the President or who holds the executive power, the human rights issue is of such importance that it should be safeguarded and it should be independent of political parties or powers that are actually holding the reins of government. Our experience during the martial law period made us realize how precious those rights are and, therefore, these must be safeguarded at all times. xxx xxx xxx MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the power of the Commission on Human Rights to be coterminous with the president, because the President's power is such that if he appoints a certain commissioner and that commissioner is subject to the President, therefore, any human rights violations committed under the person's administration will be subject to presidential pressure. That is what we would like to avoid to make the protection of human rights go beyond the fortunes of different political parties or administrations in power. 28 xxx xxx xxx MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable Chief Justice Concepcion and retired Justice J.B.L. Reyes and they believe that there should be an independent Commission on Human Rights free from executive influence because many of the

irregularities on human rights violations are committed by members of the armed forces and members of the executive branch of the government. So as to insulate this body from political interference, there is a need to constitutionalize it. 29 xxx xxx xxx MR. SARMIENTO: On the inquiry on whether there is a need for this to be constitutionalized, I would refer to a previous inquiry that there is still a need for making this a constitutional body free or insulated from interference. I conferred with former Chief Justice Concepcion and the acting chairman of the Presidential Committee on Human Rights, retired Justice J.B.L. Reyes, and they are one in saying that this body should be constitutionalized so that it will be free from executive control or interferences, since many of the abuses are committed by the members of the military or the armed forces. 30 xxx xxx xxx MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we leave it to Congress, this commission will be within the reach of politicians and of public officers and that to me is dangerous. We should insulate this body from political control and political interference because of the nature of its functions to investigate all forms of human rights violations which are principally committed by members of the military, by the Armed Forces of the Philippines. 31 xxx xxx xxx MR. GARCIA. The critical factor here is political control, and normally, when a body is appointed by Presidents who may change, the commission must remain above these changes in political control. Secondly, the other important factor to consider are the armed forces, the police forces which have tremendous power at their command and, therefore, we would need a commission composed of men who also are beyond the reach of these forces and the changes in political administration. 32 xxx xxx xxx MR MONSOD. Yes, It is the committee's position that this proposed special body, in order to function effectively, must be invested with an independence that is necessary not only for its credibility but also for the effectiveness of its work. However, we want to make a distinction in this Constitution. May be what happened was that it was referred to the wrong committee. In the opinion of the committee, this need not be a commission that is similar to the three constitutional commissions like the COA, the COMELEC, and the Civil Service. It need not be in that article. 33 xxx xxx xxx MR. COLAYCO. The Commissioners earlier objection was that the Office of the President is not involved in the project. How sure are we that the next President of the Philippines will be somebody we can trust? Remember, even now there is a growing concern about some of the bodies, agencies and commission created by President Aquino. 34 xxx xxx xxx .... Leaving to Congress the creation of the Commission on Human Rights is giving less importance to a truly fundamental need to set up a body that will effectively enforce the rules designed to uphold human rights. 35 PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the President on 17 December 1988, and her acceptance thereof, is not to say that she cannot be removed from office before the expiration of her seven (7) year term. She certainly can be removed but her removal must be for cause and with her right to due process properly safeguarded. In the case of NASECO vs. NLRC, 36 this Court held that before a rank-and-file employee of the NASECO, a government-owned corporation, could be dismissed, she was entitled to a hearing and due process. How much more, in the case of the Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights. If there are charges against Bautista for misfeasance or malfeasance in office, charges may be filed against her with the Ombudsman. If he finds a prima facie case against her, the corresponding information or informations can be filed with the Sandiganbayan which may in turn order her suspension from office while the case or cases against her are pending before said court. 37 This is due process in action. This is the way of a government of laws and not of men. A FINAL WORD It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for the Commission on Human Rights (pending decision in this case) instead of appointing another permanent Chairman. The latter course would have added only more legal difficulties to an already difficult situation. WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the duly appointed Chairman of the Commission on Human Rights and the lawful incumbent thereof, entitled to all the benefits, privileges and emoluments of said office. The temporary restraining order heretofore issued by the Court against respondent Mallillin enjoining him from dismissing or terminating personnel of the Commission on Human Rights is made permanent. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 79974 December 17, 1987 ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners, vs. SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET, respondents, COMMISSION ON APPOINTMENTS, intervenor.

PADILLA, J.: Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been confirmed by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality of respondent Mison's appointment without the confirmation of the Commission on Appointments. Because of the demands of public interest, including the need for stability in the public service, the Court resolved to give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the proper remedy to test respondent Mison's right to the Office of Commissioner of the Bureau of Customs and of whether the petitioners have a standing to bring this suit. By the same token, and for the same purpose, the Court allowed the Commission on Appointments to intervene and file a petition in intervention. Comment was required of respondents on said petition. The comment was filed, followed by intervenor's reply thereto. The parties were also heard in oral argument on 8 December 1987. This case assumes added significance because, at bottom line, it involves a conflict between two (2) great departments of government, the Executive and Legislative Departments. It also occurs early in the life of the 1987 Constitution. The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that: The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves. The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive or the legislative department may want them construed, but in accordance with what they say and provide. Section 16, Article VII of the 1987 Constitution says: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are: First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; 2 Second, all other officers of the Government whose appointments are not otherwise provided for by law; Third, those whom the President may be authorized by law to appoint; Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the President alone.
3

The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President appoints. 5 The second, third and fourth groups of officers are the present bone of contention. Should they be appointed by the President with or without the consent (confirmation) of the Commission on Appointments? By following the accepted rule in constitutional and statutory construction that an express enumeration of subjects excludes others not enumerated, it would follow that only those appointments to positions expressly stated in the first group require the consent (confirmation) of the Commission on Appointments. But we need not rely solely on this basic rule of constitutional construction. We can refer to historical background as well as to the records of the 1986 Constitutional Commission to determine, with more accuracy, if not precision, the intention of the framers of the 1987 Constitution and the people adopting it, on whether the appointments by the President, under the second, third and fourth groups, require the consent (confirmation) of the Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos: In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. "Courts are bound to presume that the people adopting a constitution are familiar with the previous and existing laws upon the subjects to which its provisions relate, and upon which they express their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6 It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that xxx xxx xxx (3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. (4) The President shall havethe power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. xxx xxx xxx (7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other public ministers and consuls ... Upon the other hand, the 1973 Constitution provides thatSection 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed Forces of the Philippines from the rank of Brigadier General or Commodore, and all other officers of The government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint. However, the Batasang Pambansa may by law vest in the Prime Minister, members of the Cabinet, the Executive Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint inferior officers in their respective offices. Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commission on Appointments. It is now a sad part of our political history that the power of confirmation by the Commission on Appointments, under the 1935 Constitution, transformed that commission, many times, into a venue of "horse-trading" and similar malpractices. On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and remolded by successive amendments, placed the absolute power of appointment in the President with hardly any check on the part of the legislature. Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the Commission on Appointments for the first group of appointments and leaving to the President, without such confirmation, the appointment of other officers, i.e., those in the second and third groups as well as those in the fourth group, i.e., officers of lower rank. The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as follows: Section 16. The president shall nominate and, with the consent of a Commission on Appointment, shall appoint the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts, or in the heads of departments 7 [Emphasis supplied]. The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the frames discussed on the floor of the Commission the proposed text of Section 16, Article VII, a feeling was manifestly expressed to make the power of the Commission on Appointments over presidential appointments more limited than that held by the Commission in the 1935 Constitution. ThusMr. Rama: ... May I ask that Commissioner Monsod be recognized The President: We will call Commissioner Davide later.

Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our time to lay the basis for some of the amendments that I would like to propose to the Committee this morning. xxx xxx xxx On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to the department heads, ambassadors, generals and so on but not to the levels of bureau heads and colonels. xxx xxx xxx 8 (Emphasis supplied.) In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second sentence 9 of the section from the same requirement. The records of the deliberations of the Constitutional Commission show the following: MR. ROMULO: I ask that Commissioner Foz be recognized THE PRESIDENT: Commissioner Foz is recognized MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26 which is to delete the words "and bureaus," and on line 28 of the same page, to change the phrase 'colonel or naval captain to MAJOR GENERAL OR REAR ADMIRAL. This last amendment which is co-authored by Commissioner de Castro is to put a period (.) after the word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL ALSO APPOINT, et cetera. MR. REGALADO: May we have the amendments one by one. The first proposed amendment is to delete the words "and bureaus" on line 26. MR. FOZ: That is correct. MR. REGALADO: For the benefit of the other Commissioners, what would be the justification of the proponent for such a deletion? MR. FOZ: The position of bureau director is actually quite low in the executive department, and to require further confirmation of presidential appointment of heads of bureaus would subject them to political influence. MR. REGALADO: The Commissioner's proposed amendment by deletion also includes regional directors as distinguished from merely staff directors, because the regional directors have quite a plenitude of powers within the regions as distinguished from staff directors who only stay in the office. MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff bureau directors. xxx xxx xxx MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner proposed an amendment to delete 'and bureaus on Section 16. Who will then appoint the bureau directors if it is not the President? MR. FOZ: It is still the President who will appoint them but their appointment shall no longer be subject to confirmation by the Commission on Appointments. MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de Castro? MR. FOZ: Yes. MR. MAAMBONG: Thank you. THE PRESIDENT: Is this clear now? What is the reaction of the Committee? xxx xxx xxx MR. REGALADO: Madam President, the Committee feels that this matter should be submitted to the body for a vote. MR. DE CASTRO: Thank you. MR. REGALADO: We will take the amendments one by one. We will first vote on the deletion of the phrase 'and bureaus on line 26, such that appointments of bureau directors no longer need confirmation by the Commission on Appointment.

Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on Appointments, shall appoint the heads of the executive departments, ambassadors. . . . THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7, line 26? (Silence) The Chair hears none; the amendments is approved. xxx xxx xxx MR. ROMULO: Madam President. THE PRESIDENT: The Acting Floor Leader is recognized. THE PRESIDENT: Commissioner Foz is recognized MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1 propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY. MR. REGALADO: Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments. MR. DAVIDE: Madam President. THE PRESIDENT: Commissioner Davide is recognized. xxx xxx xxx MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that after "captain" we insert the following words: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION? FR. BERNAS: It is a little vague. MR. DAVIDE: In other words, there are positions provided for in the Constitution whose appointments are vested in the President, as a matter of fact like those of the different constitutional commissions. FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive list of those appointments which constitutionally require confirmation of the Commission on Appointments, MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed. FR. BERNAS: Will Commissioner Davide restate his proposed amendment? MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION. FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS CONSTITUTION"? MR. DAVIDE: Yes, Madam President, that is modified by the Committee. FR. BERNAS: That will clarify things. THE PRESIDENT: Does the Committee accept? MR. REGALADO: Just for the record, of course, that excludes those officers which the Constitution does not require confirmation by the Commission on Appointments, like the members of the judiciary and the Ombudsman. MR. DAVIDE: That is correct. That is very clear from the modification made by Commissioner Bernas. THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz and Davide. xxx xxx xxx

THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners Foz and Davide as accepted by the Committee? (Silence) The Chair hears none; the amendment, as amended, is approved 10 (Emphasis supplied). It is, therefore, clear that appointments to the second and third groups of officers can be made by the President without the consent (confirmation) of the Commission on Appointments. It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16, Article VII readingHe (the President) shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint . . . . (Emphasis supplied) with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers mentioned in said second sentence. In other words, the President shall appoint the officers mentioned in said second sentence in the same manner as he appoints officers mentioned in the first sentence, that is, by nomination and with the consent (confirmation) of the Commission on Appointments. Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of the conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as well; besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which meanings could, on the contrary, stress that the word "also" in said second sentence means that the President, in addition to nominating and, with the consent of the Commission on Appointments, appointing the officers enumerated in the first sentence, can appoint (without such consent (confirmation) the officers mentioned in the second sentenceRather than limit the area of consideration to the possible meanings of the word "also" as used in the context of said second sentence, the Court has chosen to derive significance from the fact that the first sentence speaks of nomination by the President and appointment by the President with the consent of the Commission on Appointments, whereas, the second sentence speaks only of appointment by the President. And, this use of different language in two (2) sentences proximate to each other underscores a difference in message conveyed and perceptions established, in line with Judge Learned Hand's observation that "words are not pebbles in alien juxtaposition" but, more so, because the recorded proceedings of the 1986 Constitutional Commission clearly and expressly justify such differences. As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers whose appointments require no confirmation of the Commission on Appointments, even if such officers may be higher in rank, compared to some officers whose appointments have to be confirmed by the Commission on Appointments under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no confirmation by the Commission on Appointments, even if he is higher in rank than a colonel in the Armed Forces of the Philippines or a consul in the Consular Service. But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate judgment of the framers of the 1987 Constitution that, except as to those officers whose appointments require the consent of the Commission on Appointments by express mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are left to the President without need of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what they were doing and of the foreseable effects thereof. Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications of such power should be strictly construed against them. Such limitations or qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions therein enumerated require the consent of the Commission on Appointments. As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads: The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. [Emphasis supplied]. and argues that, since a law is needed to vest the appointment of lower-ranked officers in the President alone, this implies that, in the absence of such a law, lowerranked officers have to be appointed by the President subject to confirmation by the Commission on Appointments; and, if this is so, as to lower-ranked officers, it follows that higher-ranked officers should be appointed by the President, subject also to confirmation by the Commission on Appointments. The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of the various departments, agencies, commissions, or boards in the government. No reason however is submitted for the use of the word "alone" in said third sentence. The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the deliberations of the 1986 Constitutional Commission, that the use of the word alone" after the word "President" in said third sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the following provision appears at the end of par. 3, section 1 0, Article VII thereof ...; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. [Emphasis supplied]. The above provision in the 1935 Constitution appears immediately after the provision which makes practically all presidential appointments subject to confirmation by the Commission on Appointments, thus3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein provided for, and those whom he may be authorized by law to appoint; ...

In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception to such rule, to provide that Congress may, however, by law vest the appointment of inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987 Constitution) in the President alone, in the courts, or in the heads of departments, In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress may by law vest the appointment of lowerranked officers in the President alone, or in the courts, or in the heads of departments, because the power to appoint officers whom he (the President) may be authorized by law to appoint is already vested in the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII. Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of various departments of the government. In short, the word "alone" in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and positive intent of the framers of the 1987 Constitution that presidential appointments, except those mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the Commission on Appointments. Coming now to the immediate question before the Court, it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus" among those officers whose appointments need the consent of the Commission on Appointments, the 1987 Constitution on the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the consent (confirmation) of the Commission on Appointments. Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the Philippines, which was enacted by the Congress of the Philippines on 22 June 1957, reads as follows: 601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as the 'Commissioner') and Assistant Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing laws. The Assistant Commissioner of Customs shall be appointed by the proper department head. Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows: Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as Commissioner) and Deputy Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing law. The Commissioner and the Deputy Commissioner of Customs shall be appointed by the President of the Philippines (Emphasis supplied.) Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935 Constitution, under which the President may nominate and, with the consent of the Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of Customs. After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau of Customs is one that devolves on the President, as an appointment he is authorizedby law to make, such appointment, however, no longer needs the confirmation of the Commission on Appointments. Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on Appointments for confirmation. He is thus entitled to exercise the full authority and functions of the office and to receive all the salaries and emoluments pertaining thereto. WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED. Without costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 87676 December 20, 1989 REPUBLIC OF THE PHILIPPINES, represented by the NATIONAL PARKS DEVELOPMENT COMMITTEE, petitioner, vs. THE HON. COURT OF APPEALS and THE NATIONAL PARKS DEVELOPMENT SUPERVISORY ASSOCIATION & THEIR MEMBERS, respondents. Bienvenido D. Comia for respondents.

GRIO-AQUINO, J.: The Regional Trial Court of Manila, Branch III, dismissed for lack of jurisdiction, the petitioner's complaint in Civil Case No. 88- 44048 praying for a declaration of illegality of the strike of the private respondents and to restrain the same. The Court of Appeals denied the petitioner's petition for certiorari, hence, this petition for review. The key issue in this case is whether the petitioner, National Parks Development Committee (NPDC), is a government agency, or a private corporation, for on this issue depends the right of its employees to strike. This issue came about because although the NPDC was originally created in 1963 under Executive Order No. 30, as the Executive Committee for the development of the Quezon Memorial, Luneta and other national parks, and later renamed as the National Parks Development Committee under Executive Order No. 68, on September 21, 1967, it was registered in the Securities and Exchange Commission (SEC) as a non-stock and non-profit corporation, known as "The National Parks Development Committee, Inc." However, in August, 1987, the NPDC was ordered by the SEC to show cause why its Certificate of Registration should not be suspended for: (a) failure to submit the General Information Sheet from 1981 to 1987; (b) failure to submit its Financial Statements from 1981 to 1986; (c) failure to register its Corporate Books; and (d) failure to operate for a continuous period of at least five (5) years since September 27, 1967. On August 18, 1987, the NPDC Chairman, Amado Lansang, Jr., informed SEC that his Office had no objection to the suspension, cancellation, or revocation of the Certificate of Registration of NPDC. By virtue of Executive Order No. 120 dated January 30, 1989, the NPDC was attached to the Ministry (later Department) of Tourism and provided with a separate budget subject to audit by the Commission on Audit. On September 10, 1987, the Civil Service Commission notified NPDC that pursuant to Executive Order No. 120, all appointments and other personnel actions shall be submitted through the Commission. Meanwhile, the Rizal Park Supervisory Employees Association, consisting of employees holding supervisory positions in the different areas of the parks, was organized and it affiliated with the Trade Union of the Philippines and Allied Services (TUPAS) under Certificate No. 1206. On June 15, 1987, two collective bargaining agreements were entered into between NPDC and NPDCEA (TUPAS local Chapter No. 967) and NPDC and NPDCSA (TUPAS Chapter No. 1206), for a period of two years or until June 30, 1989. On March 20, 1988, these unions staged a stake at the Rizal Park, Fort Santiago, Paco Park, and Pook ni Mariang Makiling at Los Banos, Laguna, alleging unfair labor practices by NPDC. On March 21, 1988, NPDC filed in the Regional Trial Court in Manila, Branch III, a complaint against the union to declare the strike illegal and to restrain it on the ground that the strikers, being government employees, have no right to strike although they may form a union. On March 24, 1988, the lower court dismissed the complaint and lifted the restraining order for lack of jurisdiction. It held that the case "properly falls under the jurisdiction of the Department of Labor," because "there exists an employer-employee relationship" between NPDC and the strikers, and "that the acts complained of in the complaint, and which plaintiff seeks to enjoin in this action, fall under paragraph 5 of Article 217 of the Labor Code, ..., in relation to Art. 265 of the same Code, hence, jurisdiction over said acts does not belong to this Court but to the Labor Arbiters of the Department of Labor." (p. 142, Rollo.). Petitioner went to the Court of Appeals on certiorari (CA-G.R. SP No. 14204). On March 31, 1989, the Court of appeals affirmed the order of the trial court, hence, this petition for review. The petitioner alleges that the Court of Appeals erred: 1) in not holding that the NPDC employees are covered by the Civil Service Law; and 2) in ruling that petitioner's labor dispute with its employees is cognizable by the Department of Labor.

We have considered the petition filed by the Solicitor General on behalf of NPDC and the comments thereto and are persuaded that it is meritorious. In Jesus P. Perlas, Jr. vs. People of the Philippines, G.R. Nos. 84637-39, August 2, 1989, we ruled that the NPDC is an agency of the government, not a governmentowned or controlled corporation, hence, the Sandiganbayan had jurisdiction over its acting director who committed estafa. We held thus: The National Parks Development Committee was created originally as an Executive Committee on January 14,1963, for the development of the Quezon Memorial, Luneta and other national parks (Executive Order No. 30). It was later designated as the National Parks Development Committee (NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966, Mrs. Imelda R. Marcos and Teodoro F. Valencia were designated Chairman and Vice- Chairman respectively (E.O. No. 3). Despite an attempt to transfer it to the Bureau of Forest Development, Department of Natural Resources, on December 1, 1975 (Letter of Implementation No. 39, issued pursuant to PD No. 830, dated November 27, 1975), the NPDC has remained under the Office of the President (E.O. No. 709, dated July 27, 1981). Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular government agency under the Office of the President and allotments for its maintenance and operating expenses were issued direct to NPDC (Exh. 10-A Perlas, Item No. 2, 3). (Italics ours.) Since NPDC is a government agency, its employees are covered by civil service rules and regulations (Sec. 2, Article IX, 1987 Constitution). Its employees are civil service employees (Sec. 14, Executive Order No. 180). While NPDC employees are allowed under the 1987 Constitution to organize and join unions of their choice, there is as yet no law permitting them to strike. In case of a labor dispute between the employees and the government, Section 15 of Executive Order No. 180 dated June 1, 1987 provides that the Public Sector LaborManagement Council, not the Department of Labor and Employment, shall hear the dispute. Clearly, the Court of Appeals and the lower court erred in holding that the labor dispute between the NPDC and the members of the NPDSA is cognizable by the Department of Labor and Employment. WHEREFORE, the petition for review is granted. The decision of the Court of Appeals in CA-G.R. SP No. 14204 is hereby set aside. The private respondents' complaint should be filed in the Public Sector Labor-Management Council as provided in Section 15 of Executive Order No. 180. Costs against the private respondents. SO ORDERED.