G.R. No.

116033 February 26, 1997

ALFREDO L. AZARCON, petitioner,

vs.
SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES and JOSE C. BATAUSA, respondents.

PANGANIBAN, J.:

Does the Sandiganbayan have jurisdiction over a private individual who is charged with malversation of
public funds as a principal after the said individual had been designated by the Bureau of Internal
Revenue as a custodian of distrained property? Did such accused become a public officer and therefore
subject to the graft court's jurisdiction as a consequence of such designation by the BIR?

These are the main questions in the instant petition for review of Respondent Sandiganbayan's
Decision 1 in Criminal Case No. 14260 promulgated on March 8, 1994, convicting petitioner of
malversation of public funds and property, and Resolution 2 dated June 20, 1994, denying his motion for
new trial or reconsideration thereof.

The Facts

Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling "dirt and ore." 3 His
services were contracted by the Paper Industries Corporation of the Philippines (PICOP) at its concession
in Mangagoy, Surigao del Sur. Occasionally, he engaged the services of sub-contractors like Jaime Ancla
whose trucks were left at the former's premises. 4 From this set of circumstances arose the present
controversy.

. . . It appears that on May 25, 1983, a Warrant of Distraint of Personal Property was
issued by the Main Office of the Bureau of Internal Revenue (BIR) addressed to the
Regional Director (Jose Batausa) or his authorized representative of Revenue Region 10,
Butuan City commanding the latter to distraint the goods, chattels or effects and other
personal property of Jaime Ancla, a sub-contractor of accused Azarcon and, a delinquent
taxpayer. The Warrant of Garnishment was issued to accused Alfredo Azarcon ordering
him to transfer, surrender, transmit and/or remit to BIR the property in his possession
owned by taxpayer Ancla. The Warrant of Garnishment was received by accused
Azarcon on June 17, 1985. 5

Petitioner Azarcon, in signing the "Receipt for Goods, Articles, and Things Seized Under Authority of the
National Internal Revenue," assumed the undertakings specified in the receipt the contents of which are
reproduced as follows:

(I), the undersigned, hereby acknowledge to have received from Amadeo V. San Diego,
an Internal Revenue Officer, Bureau of Internal Revenue of the Philippines, the following
described goods, articles, and things:

Kind of property Isuzu dump truck

Motor number E120-229598
 Chassis No. SPZU50-1772440
Number of CXL 6
Color Blue
Owned By Mr. Jaime Ancla

the same having been this day seized and left in (my) possession pending investigation
by the Commissioner of Internal Revenue or his duly authorized representative. (I) further
promise that (I) will faithfully keep, preserve, and, to the best of (my) ability, protect said
goods, articles, and things seized from defacement, demarcation, leakage, loss, or
destruction in any manner; that (I) will neither alter nor remove, nor permit others to alter
or remove or dispose of the same in any manner without the express authority of the
Commissioner of Internal Revenue; and that (I) will produce and deliver all of said goods,
articles, and things upon the order of any court of the Philippines, or upon demand of the
Commissioner of Internal Revenue or any authorized officer or agent of the Bureau of
Internal Revenue. 6

Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIR's Regional Director for
Revenue Region 10 B, Butuan City stating that

. . . while I have made representations to retain possession of the property and signed a
receipt of the same, it appears now that Mr. Jaime Ancla intends to cease his operations
with us. This is evidenced by the fact that sometime in August, 1985 he surreptitiously
withdrew his equipment from my custody. . . . In this connection, may I therefore formally
inform you that it is my desire to immediately relinquish whatever responsibilities I have
over the above-mentioned property by virtue of the receipt I have signed. This
cancellation shall take effect immediately. . . . 7

Incidentally, the petitioner reported the taking of the truck to the security manager of PICOP, Mr.
Delfin Panelo, and requested him to prevent this truck from being taken out of the PICOP
concession. By the time the order to bar the truck's exit was given, however, it was too late. 8

Regional Director Batausa responded in a letter dated May 27, 1986, to wit:

An analysis of the documents executed by you reveals that while you are (sic) in
possession of the dump truck owned by JAIME ANCLA, you voluntarily assumed the
liabilities of safekeeping and preserving the unit in behalf of the Bureau of Internal
Revenue. This is clearly indicated in the provisions of the Warrant of Garnishment which
you have signed, obliged and committed to surrender and transfer to this office. Your
failure therefore, to observe said provisions does not relieve you of your responsibility. 9

Thereafter, the Sandiganbayan found that

On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of Revenue

Region 10 B, Butuan City, sent a progress report to the Chief of the Collection Branch of
the surreptitious taking of the dump truck and that Ancla was renting out the truck to a
certain contractor by the name of Oscar Cueva at PICOP (Paper Industries Corporation
of the Philippines, the same company which engaged petitioner's earth moving services),
Mangagoy, Surigao del Sur. She also suggested that if the report were true, a warrant of
 garnishment be reissued against Mr. Cueva for whatever amount of rental is due from
Ancla until such time as the latter's tax liabilities shall be deemed satisfied. . . However,
instead of doing so, Director Batausa filed a letter-complaint against the (herein
Petitioner) and Ancla on 22 January 1988, or after more than one year had elapsed from
the time of Mrs. Calo's report. 10

Provincial Fiscal Pretextato Montenegro "forwarded the records of the complaint . . . to the Office of the
Tanodbayan" on May 18, 1988. He was deputized Tanodbayan prosecutor and granted authority to
conduct preliminary investigation on August 22, 1988, in a letter by Special Prosecutor Raul Gonzales
approved by Ombudsman (Tanodbayan) Conrado Vasquez. 11

Along with his co-accused Jaime Ancla, Petitioner Azarcon was charged before the Sandiganbayan with
the crime of malversation of public funds or property under Article 217 in relation to Article 222 of the
Revised Penal Code (RPC) in the following Information 12 filed on January 12, 1990, by Special
Prosecution Officer Victor Pascual:

That on or about June 17, 1985, in the Municipality of Bislig, Province of Surigao del Sur,
Philippines, and within the jurisdiction of this Honorable Court, accused Alfredo L.
Azarcon, a private individual but who, in his capacity as depository/administrator of
property seized or deposited by the Bureau of Internal Revenue, having voluntarily
offered himself to act as custodian of one Isuzu Dumptruck (sic) with Motor No. E120-
22958, Chasis No. SPZU 50-1772440, and number CXL-6 and was authorized to be
such under the authority of the Bureau of Internal Revenue, has become a responsible
and accountable officer and said motor vehicle having been seized from Jaime C. Ancla
in satisfaction of his tax liability in the total sum of EIGHTY THOUSAND EIGHT
HUNDRED THIRTY ONE PESOS and 59/100 (P80,831.59) became a public property
and the value thereof as public fund, with grave abuse of confidence and conspiring and
confederating with said Jaime C. Ancla, likewise, a private individual, did then and there
wilfully, (sic) unlawfully and feloniously misappropriate, misapply and convert to his
personal use and benefit the aforementioned motor vehicle or the value thereof in the
aforestated amount, by then and there allowing accused Jaime C. Ancla to remove,
retrieve, withdraw and tow away the said Isuzu Dumptruck (sic) with the authority,
consent and knowledge of the Bureau of Internal Revenue, Butuan City, to the damage
and prejudice of the government in the amount of P80,831.59 in a form of unsatisfied tax
liability.

CONTRARY TO LAW.

The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14, 1991, alleging that:
(1) the petitioner never appeared in the preliminary investigation; and (2) the petitioner was not a public
officer, hence a doubt exists as to why he was being charged with malversation under Article 217 of the
Revised Penal Code. 13The Sandiganbayan granted the motion for reinvestigation on May 22,
1991. 14 After the reinvestigation, Special Prosecution Officer Roger Berbano, Sr., recommended the
"withdrawal of the information" 15 but was "overruled by the Ombudsman." 16

A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that the Sandiganbayan did
not have jurisdiction over the person of the petitioner since he was not a public officer. 17 On May 18,
1992; the Sandiganbayan denied the motion. 18
When the prosecution finished presenting its evidence, the petitioner then filed a motion for leave to file
demurrer to evidence which was denied on November 16, 1992, "for being without merit." 19 The petitioner
then commenced and finished presenting his evidence on February 15, 1993.

The Respondent Court's Decision

20
On March 8, 1994, Respondent Sandiganbayan rendered a Decision, 21 the dispositive portion of which
reads:

WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY beyond
reasonable doubt as principal of Malversation of Public Funds defined and penalized
under Article 217 in relation to Article 222 of the Revised Penal Code and, applying the
Indeterminate Sentence Law, and in view of the mitigating circumstance of voluntary
surrender, the Court hereby sentences the accused to suffer the penalty of imprisonment
ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor in its maximum period
to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Reclusion
Temporal. To indemnify the Bureau of Internal Revenue the amount of P80,831.59; to pay
a fine in the same amount without subsidiary imprisonment in case of insolvency; to
suffer special perpetual disqualification; and, to pay the costs.

Considering that accused Jaime Ancla has not yet been brought within the jurisdiction of
this Court up to this date, let this case be archived as against him without prejudice to its
revival in the event of his arrest or voluntary submission to the jurisdiction of this Court.

SO ORDERED.

Petitioner, through new counsel, 22 filed a motion for new trial or reconsideration on March 23, 1994,
which was denied by the Sandiganbayan in its Resolution 23 dated December 2, 1994.

Hence, this petition.

The Issues

The petitioner submits the following reasons for the reversal of the Sandiganbayan's assailed Decision
and Resolution:

I. The Sandiganbayan does not have jurisdiction over crimes committed

solely by private individuals.

II. In any event, even assuming arguendo that the appointment of a

private individual as a custodian or a depositary of distrained property is
sufficient to convert such individual into a public officer, the petitioner
cannot still be considered a public officer because:

[A]
 There is no provision in the National Internal Revenue Code which
authorizes the Bureau of Internal Revenue to constitute private
individuals as depositaries of distrained properties.

[B]

His appointment as a depositary was not by virtue of a direct provision of

law, or by election or by appointment by a competent authority.

III. No proof was presented during trial to prove that the distrained
vehicle was actually owned by the accused Jaime Ancla; consequently,
the government's right to the subject property has not been established.

IV. The procedure provided for in the National Internal Revenue Code
concerning the disposition of distrained property was not followed by the
B.I.R., hence the distraint of personal property belonging to Jaime C.
Ancla and found allegedly to be in the possession of the petitioner is
therefore invalid.

V. The B.I.R. has only itself to blame for not promptly selling the
distrained property of accused Jaime C. Ancla in order to realize the
amount of back taxes owed by Jaime C. Ancla to the Bureau. 24

In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over the subject matter of
the controversy. Corollary to this is the question of whether petitioner can be considered a public officer
by reason of his being designated by the Bureau of Internal Revenue as a depositary of distrained
property.

The Court's Ruling

The petition is meritorious.

Jurisdiction of the Sandiganbayan

It is hornbook doctrine that in order "(to) ascertain whether a court has jurisdiction or not, the provisions of
the law should be inquired into." 25 Furthermore, "the jurisdiction of the court must appear clearly from the
statute law or it will not be held to exist. It cannot be presumed or implied." 26 And for this purpose in
criminal cases, "the jurisdiction of a court is determined by the law at the time of commencement of the
action." 27

In this case, the action was instituted with the filing of this information on January 12, 1990; hence, the
applicable statutory provisions are those of P.D. No. 1606, as amended by P.D. No. 1861 on March 23,
1983, but prior to their amendment by R.A. No. 7975 on May 16, 1995. At that time, Section 4 of P.D. No.
1606 provided that:

Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:

(a) Exclusive original jurisdiction in all cases involving:

 (1) Violations of Republic Act No. 3019, as amended, otherwise known
as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII of the Revised Penal Code;

(2) Other offenses or felonies committed by public officers and

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

xxx xxx xxx

In case private individuals are charged as co-principals, accomplices or accessories with

the public officers or employees, including those employed in government-owned or
controlled corporations, they shall be tried jointly with said public officers and employees.

xxx xxx xxx

The foregoing provisions unequivocally specify the only instances when the Sandiganbayan will have
jurisdiction over a private individual, i.e. when the complaint charges the private individual either as a co-
principal, accomplice or accessory of a public officer or employee who has been charged with a crime
within its jurisdiction.

Azarcon: A Public Officer or A Private Individual?

The Information does not charge petitioner Azarcon of being a co-principal, accomplice or accessory to a
public officer committing an offense under the Sandiganbayan's jurisdiction. Thus, unless petitioner be
proven a public officer, the Sandiganbayan will have no jurisdiction over the crime charged. Article 203 of
the RPC determines who are public officers:

Who are public officers. For the purpose of applying the provisions of this and the
preceding titles of the book, any person who, by direct provision of the law, popular
election, popular election or appointment by competent authority, shall take part in the
performance of public functions in the Government of the Philippine Islands, or shall
perform in said Government or in any of its branches public duties as an employee,
agent, or subordinate official, of any rank or classes, shall be deemed to be a public
officer.

Thus,

(to) be a public officer, one must be

 (1) Taking part in the performance of public functions in the government, or

Performing in said Government or any of its branches public duties as

an employee, agent, or subordinate official, of any rank or class; and

(2) That his authority to take part in the performance of public functions or to perform
public duties must be

a. by direct provision of the law, or

b. by popular election, or

c. by appointment by competent authority. 28

Granting arguendo that the petitioner, in signing the receipt for the truck constructively distrained by the
BIR, commenced to take part in an activity constituting public functions, he obviously may not be deemed
authorized by popular election. The next logical query is whether petitioner's designation by the BIR as a
custodian of distrained property qualifies as appointment by direct provision of law, or by competent
authority. 29 We answer in the negative.

The Solicitor General contends that the BIR, in effecting constructive distraint over the truck allegedly
owned by Jaime Ancla, and in requiring Petitioner Alfredo Azarcon who was in possession thereof to sign
a pro forma receipt for it, effectively "designated" petitioner a depositary and, hence,
citing U.S. vs. Rastrollo, 30 a public officer. 31 This is based on the theory that

(t)he power to designate a private person who has actual possession of a distrained
property as a depository of distrained property is necessarily implied in the BIR's power to
place the property of a delinquent tax payer (sic) in distraint as provided for under
Sections 206, 207 and 208 (formerly Sections 303, 304 and 305) of the National Internal
Revenue Code, (NIRC) . . . . 32

We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before us simply because the
facts therein are not identical, similar or analogous to those obtaining here. While the cited case involved
a judicial deposit of the proceeds of the sale of attached property in the hands of the debtor, the case at
bench dealt with the BIR's administrative act of effecting constructive distraint over alleged property of
taxpayer Ancla in relation to his back taxes, property which was received by Petitioner Azarcon. In the
cited case, it was clearly within the scope of that court's jurisdiction and judicial power to constitute the
judicial deposit and give "the depositary a character equivalent to that of a public official." 33 However, in
the instant case, while the BIR had authority to require Petitioner Azarcon to sign a receipt for the
distrained truck, the NIRC did not grant it power to appoint Azarcon a public officer.

It is axiomatic in our constitutional framework, which mandates a limited government, that its branches
and administrative agencies exercise only that power delegated to them as "defined either in the
Constitution or in legislation or in both." 34 Thus, although the "appointing power is the exclusive
prerogative of the President, . . ." 35 the quantum of powers possessed by an administrative agency
forming part of the executive branch will still be limited to that "conferred expressly or by necessary or fair
implication" in its enabling act. Hence, "(a)n administrative officer, it has been held, has only such powers
as are expressly granted to him and those necessarily implied in the exercise thereof." 36Corollarily,
implied powers "are those which are necessarily included in, and are therefore of lesser degree than the
power granted. It cannot extend to other matters not embraced therein, nor are not incidental
thereto." 37 For to so extend the statutory grant of power "would be an encroachment on powers expressly
lodged in Congress by our Constitution." 38 It is true that Sec. 206 of the NIRC, as pointed out by the
prosecution, authorizes the BIR to effect a constructive distraint by requiring "any person" to preserve a
distrained property, thus:

xxx xxx xxx

The constructive distraint of personal property shall be effected by requiring the taxpayer
or any person having possession or control of such property to sign a receipt covering the
property distrained and obligate himself to preserve the same intact and unaltered and
not to dispose of the same in any manner whatever without the express authority of the
Commissioner.

xxx xxx xxx

However, we find no provision in the NIRC constituting such person a public officer by reason of such
requirement. The BIR's power authorizing a private individual to act as a depositary cannot be stretched
to include the power to appoint him as a public officer. The prosecution argues that "Article 222 of the
Revised Penal Code . . . defines the individuals covered by the term 'officers' under Article 217 39 . . ." of
the same Code. 40 And accordingly, since Azarcon became "a depository of the truck seized by the BIR"
he also became a public officer who can be prosecuted under Article 217 . . . ." 41

The Court is not persuaded. Article 222 of the RPC reads:

Officers included in the preceding provisions. The provisions of this chapter shall apply
to private individuals who, in any capacity whatever, have charge of any insular,
provincial or municipal funds, revenues, or property and to any administrator or
depository of funds or property attached, seized or deposited by public authority, even if
such property belongs to a private individual.

"Legislative intent is determined principally from the language of a statute. Where the language of a
statute is clear and unambiguous, the law is applied according to its express terms, and interpretation
would be resorted to only where a literal interpretation would be either impossible or absurd or would lead
to an injustice." 42 This is particularly observed in the interpretation of penal statutes which "must be
construed with such strictness as to carefully safeguard the rights of the defendant . . . ." 43 The language
of the foregoing provision is clear. A private individual who has in his charge any of the public funds or
property enumerated therein and commits any of the acts defined in any of the provisions of Chapter
Four, Title Seven of the RPC, should likewise be penalized with the same penalty meted to erring public
officers. Nowhere in this provision is it expressed or implied that a private individual falling under said
Article 222 is to be deemed a public officer.

After a thorough review of the case at bench, the Court thus finds Petitioner Alfredo Azarcon and his co-
accused Jaime Ancla to be both private individuals erroneously charged before and convicted by
Respondent Sandiganbayan which had no jurisdiction over them. The Sandiganbayan's taking
cognizance of this case is of no moment since "(j)urisdiction cannot be conferred by . . . erroneous belief
of the court that it had jurisdiction." 44 As aptly and correctly stated by the petitioner in his memorandum:
 From the foregoing discussion, it is evident that the petitioner did not cease to be a
private individual when he agreed to act as depositary of the garnished dump truck.
Therefore, when the information charged him and Jaime Ancla before the Sandiganbayan
for malversation of public funds or property, the prosecution was in fact charging two
private individuals without any public officer being similarly charged as a co-conspirator.
Consequently, the Sandiganbayan had no jurisdiction over the controversy and therefore
all the proceedings taken below as well as the Decision rendered by Respondent
Sandiganbayan, are null and void for lack of jurisdiction. 45

WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are hereby SET ASIDE
and declared NULL and VOID for lack of jurisdiction. No costs.

SO ORDERED.

____

G.R. No. 87193 June 23, 1989

JUAN GALLANOSA FRIVALDO, petitioner,

vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER,
HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents.

J.L. Misa & Associates for petitioner.

Lladoc, Huab & Associates for private respondent.

CRUZ, J.:

Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22,
1988, and assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon
Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his
personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo; election
and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United
States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized
in the United States as alleged but pleaded the special and affirmative defenses that he had sought
American citizenship only to protect himself against President Marcos. His naturalization, he said, was
"merely forced upon himself as a means of survival against the unrelenting persecution by the Martial
Law Dictator's agents abroad." He added that he had returned to the Philippines after the EDSA
revolution to help in the restoration of democracy. He also argued that the challenge to his title should be
dismissed, being in reality a quo warranto petition that should have been filed within ten days from his
proclamation, in accordance with Section 253 of the Omnibus Election Code. The League, moreover, was
not a proper party because it was not a voter and so could not sue under the said section.

Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on
Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His
motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this
Court in a petition for certiorari and prohibition to ask that the said orders be set aside on the ground that
they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a
temporary order against the hearing on the merits scheduled by the COMELEC and at the same time
required comments from the respondents.

In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized
American citizen and had not reacquired Philippine citizenship on the day of the election on January 18,
1988. He was therefore not qualified to run for and be elected governor. They also argued that their
petition in the Commission on Elections was not really for quo warranto under Section 253 of the
Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as governor, his
candidacy and election being null and void ab initio because of his alienage. Even if their petition were to
be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's
proclamation because it was only in September 1988 that they received proof of his naturalization. And
assuming that the League itself was not a proper party, Estuye himself, who was suing not only for the
League but also in his personal capacity, could nevertheless institute the suit by himself alone.

Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a
citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As
an alien, he was disqualified from public office in the Philippines. His election did not cure this defect
because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and
the Omnibus Election Code. He also joined in the private respondent's argument that Section 253 of the
Omnibus Election Code was not applicable because what the League and Estuye were seeking was not
only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for
the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a
Filipino.

In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an
American citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955
I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not
recognized because it had been obtained for reasons of convenience only. He said he could not have
repatriated himself before the 1988 elections because the Special Committee on Naturalization created
for the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate of candidacy
that he was a natural-born citizen should be a sufficient act of repatriation. Additionally, his active
participation in the 1987 congressional elections had divested him of American citizenship under the laws
of the United States, thus restoring his Philippine citizenship. He ended by reiterating his prayer for the
rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus Election
Code.

Considering the importance and urgency of the question herein raised, the Court has decided to resolve it
directly instead of allowing the normal circuitous route that will after all eventually end with this Court,
albeit only after a, long delay. We cannot permit this delay. Such delay will be inimical to the public
interest and the vital principles of public office to be here applied.

It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge
of all contests relating to the election, returns and qualifications of the members of the Congress and
elective provincial and city officials. However, the decision on Frivaldo's citizenship has already been
made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo
is a foreigner. We assume this stance was taken by him after consultation with the public respondent and
with its approval. It therefore represents the decision of the COMELEC itself that we may now review.
Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the
present petition as having been filed in accordance with Article IX-A Section 7, of the Constitution, to
challenge the aforementioned Orders of the COMELEC.

The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at
the time of his election on January 18, 1988, as provincial governor of Sorsogon. All the other issues
raised in this petition are merely secondary to this basic question.

The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public
officials and employees owe the State and the Constitution "allegiance at all times" and the specific
requirement in Section 42 of the Local Government Code that a candidate for local elective office must
be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running.
Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other
qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under
Article V, Section 1, of the Constitution.

In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-
born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence
shows, however, that he was naturalized as a citizen of the United States in 1983 per the following
certification from the United States District Court, Northern District of California, as duly authenticated by
Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A.

OFFICE OF THE CLERK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

September 23, 1988

TO WHOM IT MAY CONCERN:

Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was
naturalized in this Court on January 20, 1983, and issued Certificate of Naturalization No.
11690178.

Petition No. 280225.

Alien Registration No. A23 079 270.

Very truly yours,

WILLIAM L. WHITTAKER

Clerk
 by:

(Sgd.)

ARACELI V. BAREN

Deputy Clerk

This evidence is not denied by the petitioner. In fact, he expressly admitted it in his
answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of
protection from the persecution of the Marcos government through his agents in the
United States.

The Court sees no reason not to believe that the petitioner was one of the enemies of the
Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was
coerced into embracing American citizenship. His feeble suggestion that his
naturalization was not the result of his own free and voluntary choice is totally
unacceptable and must be rejected outright.

There were many other Filipinos in the United States similarly situated as Frivaldo, and
some of them subject to greater risk than he, who did not find it necessary nor do they
claim to have been coerced to abandon their cherished status as Filipinos. They did
not take the oath of allegiance to the United States, unlike the petitioner who solemnly
declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and
fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have
heretofore been a subject or citizen," meaning in his case the Republic of the Philippines.
The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who,
unlike the petitioner, held fast to their Philippine citizenship despite the perils of their
resistance to the Marcos regime.

The Nottebohm case cited by the petitioner invoked the international law principle of
effective nationality which is clearly not applicable to the case at bar. This principle is
expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality
Laws as follows:

Art. 5. Within a third State a person having more than one nationality
shall be treated as if he had only one. Without prejudice to the
application of its law in matters of personal status and of any convention
in force, a third State shall, of the nationalities which any such person
possesses, recognize exclusively in its territory either the nationality of
the country in which he is habitually and principally resident or the
nationality of the country with which in the circumstances he appears to
be in fact most closely connected.

Nottebohm was a German by birth but a resident of Guatemala for 34 years when he
applied for and acquired naturalization in Liechtenstein one month before the outbreak of
World War II. Many members of his family and his business interests were in Germany. In
1943, Guatemala, which had declared war on Germany, arrested Nottebohm and
confiscated all his properties on the ground that he was a German national. Liechtenstein
thereupon filed suit on his behalf, as its citizen, against Guatemala. The International
Court of Justice held Nottebohm to be still a national of Germany, with which he was
more closely connected than with Liechtenstein.

That case is not relevant to the petition before us because it dealt with a conflict between
the nationality laws of two states as decided by a third state. No third state is involved in
the case at bar; in fact, even the United States is not actively claiming Frivaldo as its
national. The sole question presented to us is whether or not Frivaldo is a citizen of the
Philippines under our own laws, regardless of other nationality laws. We can decide this
question alone as sovereign of our own territory, conformably to Section 1 of the said
Convention providing that "it is for each State to determine under its law who are its
nationals."

It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein
whereas in the present case Frivaldo is rejecting his naturalization in the United States.

If he really wanted to disavow his American citizenship and reacquire Philippine

citizenship, the petitioner should have done so in accordance with the laws of our country.
Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may
be reacquired by direct act of Congress, by naturalization, or by repatriation.

While Frivaldo does not invoke either of the first two methods, he nevertheless claims he
has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by
actively participating in the elections in this country, he automatically forfeited American
citizenship under the laws of the United States. Such laws do not concern us here. The
alleged forfeiture is between him and the United States as his adopted country. It should
be obvious that even if he did lose his naturalized American citizenship, such forfeiture
did not and could not have the effect of automatically restoring his citizenship in the
Philippines that he had earlier renounced. At best, what might have happened as a result
of the loss of his naturalized citizenship was that he became a stateless individual.

Frivaldo's contention that he could not have repatriated himself under LOI 270 because
the Special Committee provided for therein had not yet been constituted seems to
suggest that the lack of that body rendered his repatriation unnecessary. That is far-
fetched if not specious Such a conclusion would open the floodgates, as it were. It would
allow all Filipinos who have renounced this country to claim back their abandoned
citizenship without formally rejecting their adoptedstate and reaffirming their allegiance to
the Philippines.

It does not appear that Frivaldo has taken these categorical acts. He contends that by
simply filing his certificate of candidacy he had, without more, already effectively
recovered Philippine citizenship. But that is hardly the formal declaration the law
envisions surely, Philippine citizenship previously disowned is not that cheaply
recovered. If the Special Committee had not yet been convened, what that meant simply
 was that the petitioner had to wait until this was done, or seek naturalization by legislative
or judicial proceedings.

The argument that the petition filed with the Commission on Elections should be
dismissed for tardiness is not well-taken. The herein private respondents are seeking to
prevent Frivaldo from continuing to discharge his office of governor because he is
disqualified from doing so as a foreigner. Qualifications for public office are continuing
requirements and must be possessed not only at the time of appointment or election or
assumption of office but during the officer's entire tenure. Once any of the required
qualifications is lost, his title may be seasonably challenged. If, say, a female legislator
were to marry a foreigner during her term and by her act or omission acquires his
nationality, would she have a right to remain in office simply because the challenge to her
title may no longer be made within ten days from her proclamation? It has been
established, and not even denied, that the evidence of Frivaldo's naturalization was
discovered only eight months after his proclamation and his title was challenged shortly
thereafter.

This Court will not permit the anomaly of a person sitting as provincial governor in this
country while owing exclusive allegiance to another country. The fact that he was elected
by the people of Sorsogon does not excuse this patent violation of the salutary rule
limiting public office and employment only to the citizens of this country. The qualifications
prescribed for elective office cannot be erased by the electorate alone. The will of the
people as expressed through the ballot cannot cure the vice of ineligibility, especially if
they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this
rule requires strict application when the deficiency is lack of citizenship. If a person seeks
to serve in the Republic of the Philippines, he must owe his total loyalty to this country
only, abjuring and renouncing all fealty and fidelity to any other state.

It is true as the petitioner points out that the status of the natural-born citizen is favored
by the Constitution and our laws, which is all the more reason why it should be treasured
like a pearl of great price. But once it is surrendered and renounced, the gift is gone and
cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like
a jealous and possessive mother. Once rejected, it is not quick to welcome back with
eager arms its prodigal if repentant children. The returning renegade must show, by an
express and unequivocal act, the renewal of his loyalty and love.

WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby

declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as
Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and
surrender the same to the duly elected Vice-Governor of the said province once this
decision becomes final and executory. The temporary restraining order dated March 9,
1989, is LIFTED.

SO ORDERED.

__________

G.R. No. 130872 March 25, 1999

FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

BELLOSILLO, J.:

FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the
Sandiganbayan of thirteen (13) counts of estafa through falsification of public documents. 1 They now
seek a review of their conviction as they insist on their innocence.

Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son, his
co-petitioner Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay
Bagong Silang, Municipality of Santa Cruz, and concurrently a member of its Sangguniang Bayan (SB)
representing the Federation of Kabataang Barangays.

In the 1985 election for the Kabataang Barangay Jowil Red 2 won as KB Chairman of Barangay Matalaba,
Santa Cruz. Parenthetically, Lenlie Lecaroz, did not run as candidate in this electoral exercise as he was
no longer qualified for the position after having already passed the age limit fixed by law.

Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as member of the
Sangguniang Bayan of Santa Cruz representing the KBs of the municipality. Imee Marcos-Manotoc, then
the National Chairperson of the organization, sent a telegram to Red confirming his appointment and
advising him further that copies of his appointment papers would be sent to him in due time through the
KB Regional Office. 3Red received the telegram on 2 January 1986 and showed it immediately to Mayor
Francisco M. Lecaroz.

On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral
representative of the KBs to the SB, Red attended the meeting of the Sanggunian upon the invitation of
one of its members, Kagawad Rogato Lumawig. In that meeting, Mayor Francisco M. Lecaroz informed
Red that he could not yet sit as member of the municipal council until his appointment had been cleared
by the Governor of Marinduque. Nonetheless, the telegram was included in the agenda as one of the
subjects discussed in the meeting.

Red finally received his appointment papers sometime in January 1986. 4 But it was only on 23 April 1986,
when then President Corazon C. Aquino was already in power, 5 that he forwarded these documents to
Mayor Lecaroz. This notwithstanding, Red was still not allowed by the mayor to sit as sectoral
representative in the Sanggunian.

Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie Lecaroz of
twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the period 16 January 1986 to
30 January 1987. Lenlie Lecaroz signed the payroll for 1-15 January 1986 and then authorized someone
else to sign all the other payrolls for the succeeding quincenas and claim the corresponding salaries in his
behalf.
On 25 October 1989, or three (3) years and nine (9) months from the date he received his appointment
papers from President Marcos, Red was finally able to secure from the Aquino Administration a
confirmation of his appointment as KB Sectoral Representative to the Sanggunian Bayan of Santa Cruz.

Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against Mayor
Francisco Lecaroz and Lenlie Lecaroz arising from the refusal of the two officials to let him assume the
position of KB sectoral representative. After preliminary investigation, the Ombudsman filed with the
Sandiganbayan thirteen (13) Informations for estafa through falsification of public documents against
petitioners, and one (1) Information for violation of Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and
Corrupt Practices Act, against Mayor Lecaroz alone.

On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on all
counts of estafa through falsification of public documents and sentenced each of them to

a) imprisonment for an indeterminate period ranging from a minimum of FIVE (5) YEARS,
ELEVEN (11) MONTHS AND ONE (1) DAY of prision correccional to a maximum of TEN
(10) YEARS AND ONE (1) DAY of prison mayor FOR EACH OF THE ABOVE CASES;

b) a fine in the amount of FIVE THOUSAND PESOS (P5,000) FOR EACH OF THE
ABOVE CASES or a total of SIXTY-FIVE THOUSAND PESOS (P65,000); and

c) perpetual special disqualification from public office in accordance with Art. 214 of the
Revised Penal Code.

. . . (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND SIX
HUNDRED SEVENTY-FIVE PESOS (P23,675), the amount unlawfully obtained, to the
Municipality of Sta. Cruz, Marinduque in restitution.

The Sandiganbayan ruled that since Red was elected president of the KB and took his oath of office
sometime in 1985 before then Assemblywoman Carmencita O. Reyes his assumption of the KB
presidency upon the expiration of the term of accused Lenlie Lecaroz was valid. Conversely, the accused
Lenlie Lecaroz ceased to be a member of the KB on the last Sunday of November 1985 and, as such,
was no longer the legitimate representative of the youth sector in the municipal council of Sta. Cruz,
Marinduque.

In convicting both accused on the falsification charges, the Sandiganbayan elucidated

. . . . when, therefore, accused MAYOR FRANCISCO LECAROZ entered the name of his
son, the accused LENLIE LECAROZ, in the payroll of the municipality of Sta. Cruz for the
payroll period starting January 15, 1986, reinstating accused LENLIE LECAROZ to his
position in the Sangguniang Bayan, he was deliberately stating a falsity when he certified
that LENLIE LECAROZ was a member of the Sangguniang Bayan. The fact is that even
accused LENLIE LECAROZ himself no longer attended the sessions of the Sangguniang
Bayan of Sta. Cruz, and starting with the payroll for January 16 to 31, 1986, did not
personally pick up his salaries anymore.

The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code
which reads:
 Art. 171. Falsification by public officer, employee or notary or
ecclesiastical minister. The penalty of prision mayor and a fine not to
exceed 5,000 pesos shall be imposed upon any public officer, employee,
or notary public who, taking advantage of his official position, shall falsify
a document by committing any of the following acts: . . . . 4. Making
untruthful statements in a narration of facts.

xxx xxx xxx

Clearly, falsification of public documents has been committed by accused MAYOR

LECAROZ.

Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able
to draw salaries from the municipality to which he was not entitled for services he had
admittedly not rendered. This constitutes Estafa . . . . the deceit being the falsification
made, and the prejudice being that caused to the municipality of Sta. Cruz, Marinduque
for having paid salaries to LENLIE LECAROZ who was not entitled thereto.

Conspiracy was alleged in the Informations herein, and the Court found the allegation
sufficiently substantiated by the evidence presented.

There is no justifiable reason why accused MAYOR LECAROZ should have reinstated his
son LENLIE in the municipal payrolls from January 16, 1986 to January 31, 1987, yet he
did so. He could not have had any other purpose than to enable his son LENLIE to draw
salaries thereby. This conclusion inescapable considering that the very purpose of a
payroll is precisely that to authorize the payment of salaries. And LENLIE LECAROZ
did his part by actually drawing the salaries during the periods covered, albeit through
another person whom he had authorized.

By the facts proven, there was conspiricy in the commission of Estafa between father and
son.

However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3019, the Sandiganbayan
acquitted Mayor Francisco Lecaroz. It found that Red was neither authorized to sit as member of the SB
because he was not properly appointed thereto nor had he shown to the mayor sufficient basis for his
alleged right to a seat in the municipal council. On this basis, the court a quo concluded that Mayor
Lecaroz was legally justified in not allowing Red to assume the position of Kagawad.

On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision filed by the
accused. This prompted herein petitioners to elevate their cause to us charging that the Sandiganbayan
erred:

First, in holding that Red had validly and effectively assumed the office of KB Federation President by
virtue of his oath taken before then Assembly woman Carmencita Reyes on 27 September 1985, and in
concluding that the tenure of accused Lenlie Lecaroz as president of the KB and his coterminous term of
office as KB representative to the SB had accordingly expired;
Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth representative
to the SB had expired, in holding that accused Lenlie Lecaroz could no longer occupy the office, even in a
holdover capacity, despite the vacancy therein;

Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation president had
expired, in holding that by reason thereof accused Lenlie Lecaroz became legally disqualified from
continuing in office as KB Sectoral Representative to the SB even in a holdover capacity;

Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant to the provisions of the
pertinent Ministry of Interior and Local Governments (MILG) interpretative circulars, accused Lenlie
Lecaroz was legally entitled and even mandated to continue in office in a holdover capacity;

Fifth, in holding that the accused had committed the crime of falsification within the contemplation of Art.
171 of The Revised Penal Code, and in not holding that the crime of estafa of which they, had been
convicted required criminal intent and malice as essential elements;

Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled to hold over, still the
trial court erred in not holding considering the difficult legal questions involved that the accused
acted in good faith and committed merely an error of judgment, without malice and criminal intent; and,

Seventh, in convicting the accused for crimes committed in a manner different from that alleged in the
Information under which the accused were arraigned and tried.

The petition is meritorious. The basic propositions upon which the Sandiganbayan premised its conviction
of the accused are: (a) although Jowil Red was duly elected KB Chairman he could not validly assume a
seat in the Sanggunian as KB sectoral representative for failure to show a valid appointment; and, (b)
Lenlie Lecaroz who was the incumbent KB representative could not hold over after his term expired
because pertinent laws do not provide for holdover.

To resolve these issues, it is necessary to refer to the laws on the terms of office of KB youth sectoral
representatives to the SB and of the KB Federation Presidents. Section 7 of BP Blg. 51 and Sec. 1 of the
KB Constitution respectively provide

Sec. 7. Term of office. Unless sooner removed for cause, all local elective officials
hereinabove mentioned shall hold office for a term of six (6) years, which shall commence
on the first Monday of March 1980.

In the case of the members of the sanggunian representing the association of barangay
councils and the president of the federation of kabataan barangay, their terms of office
shall be coterminous with their tenure as president fo their respective association and
federation.

xxx xxx xxx

Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until
the last Sunday of November 1985 or such time that the newly elected officers shall have
qualified and assumed office in accordance with this Constitution.
The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB since he did
not present an authenticated copy of his appointment papers; neither did he take a valid oath of office.
Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member of the SB although in a
holdover capacity since his term had already expired. The Sandiganbayan however rejected this
postulate declaring that the holdover provision under Sec. 1 quoted above pertains only to positions in the
KB, clearly implying that since no similar provision is found in Sec. 7 of B.P. Blg. 51, there can be no
holdover with respect to positions in the SB.

We disagree with the Sandiganbayan. The concept of holdover when applied to a public officer implies
that the office has a fixed term and the incumbent is holding onto the succeeding term. 6 It is usually
provided by law that officers elected or appointed for a fixed term shall remain in office not only for that
term but until their successors have been elected and qualified. Where this provision is found, the office
does not become vacant upon the expiration of the term if there is no successor elected and qualified to
assume it, but the present incumbent will carry over until his successor is elected and qualified, even
though it be beyond the term fixed by law. 7

In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to occupy
his post after the expiration of his term in case his successor fails to qualify, it does, not also say that he is
proscribed from holding over. Absent an express or implied constitutional or statutory provision to the
contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has
qualified. 8 The legislative intent of not allowing holdover must be clearly expressed or at least implied in
the legislative enactment, 9 otherwise it is reasonable to assume that the law-making body favors the
same.

Indeed, the law abhors a vacuum in public offices, 10 and courts generally indulge in the strong
presumption against a legislative intent to create, by statute, a condition which may result in an executive
or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully
authorized to exercise its functions. 11 This is founded on obvious considerations of public policy, for the
principle of holdover is specifically intended to prevent public convenience from suffering because of a
vacancy 12 and to avoid a hiatus in the performance of government functions. 13

The Sandiganbayan maintained that by taking his oath of office before Assembly woman Reyes in 1985
Red validly assumed the presidency of the KB upon the expiration of the term of Lenlie Lecaroz. It should
be noted however that under the provisions of the Administrative Code then in force, specifically Sec. 21,
Art. VI thereof, members of the then Batasang Pambansa were not authorized to administer oaths. It was
only after the approval of RA No. 6733 14 on 25 July 1989 and its subsequent publication in a newspaper
of general circulation that, members of both Houses of Congress were vested for the first time with the
general authority to administer oaths. Clearly, under this circumstance, the oath of office taken by Jowil
Red before a member of the Batasang Pambansa who had no authority to administer oaths, was invalid
and amounted to no oath at all.

To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full
investiture with the office. 15 Only when the public officer has satisfied the prerequisite of oath that his right
to enter into the position becomes plenary and complete. Until then, he has none at all. And for as long as
he has not qualified, the holdover officer is the rightful occupant. It is thus clear in the present case that
since Red never qualified for the post, petitioner Lenlie Lecaroz remained KB representative to the
Sanggunian, albeit in a carry over capacity, and was in every aspect a de jure officer, 16or at least a de
facto officer 17 entitled to receive the salaries and all the emoluments appertaining to the position. As
such, he could not be considered an intruder and liable for encroachment of public office. 18

On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were
convicted, i.e., estafa through falsification of public documents under Art. 171, par. 4, of The Revised
Penal Code, are intentional felonies for which liability attaches only when it is shown that the malefactors
acted with criminal intent or malice. 19 If what is proven is mere judgmental error on the part of the person
committing the act, no malice or criminal intent can be rightfully imputed to him. Was criminal intent then
demonstrated to justify petitioners' conviction? It does not so appear in the case at bar.

Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit reum, nisi mens
sit rea. There can be no crime when the criminal mind is wanting. As a general rule, ignorance or mistake
as to particular facts, honest and real, will exempt the doer from felonious responsibility. The exception of
course is neglect in the discharge of a duty or indifference to consequences, which is equivalent to a
criminal intent, for in this instance, the element of malicious intent is supplied by the element of
negligence and imprudence. 20 In the instant case, there are clear manifestations of good faith and lack of
criminal intent on the part of petitioners.

First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January 1986, what he
presented to Mayor Francisco Lecaroz was a mere telegram purportedly sent by Imee Marcos-Manotoc
informing him of his supposed appointment to the SB, together with a photocopy of a "Mass
Appointment." Without authenticated copies of the appointment papers, Red had no right to assume office
as KB representative to the Sanggunian, and petitioner Mayor Lecaroz had every right to withhold
recognition, as he did, of Red as a member of the Sanggunian.

Second. It appears from the records that although Red received his appointment papers signed by
President Marcos in January 1986, he forwarded the same to Mayor Francisco Lecaroz only on 23 April
1986 during which time President Marcos had already been deposed and President Aquino had already
taken over the helm of government. On 25 March 1986 the Freedom Constitution came into being
providing in Sec. 2 of Art. III thereof that

Sec. 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise, provided by proclamation or executive
order or upon the designation of their successors if such appointment is made within a
period of one (1) year from February 26, 1986. (emphasis supplied).

Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the provincial
governor forwarded the papers of Jowil Red to then Minister of Interior and Local Government Aquilino
Pimentel, Jr., requesting advice on the validity of the appointment signed by former President Marcos.
The response was the issuance of MILG Provincial Memorandum-Circular No. 86-02 21 and
Memorandum-Circular No. 86-17 22 stating that

PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02

2. That newly elected KB Federation Presidents, without their respective authenticated

appointments from the president, cannot, in any way, represent their associations in any
sangguniang bayan/sangguniang panlalawigan, as the case may be, although they are
still considered presidents of their federations by virtue of the July 1985 elections.
 MEMORANDUM CIRCULAR NO. 86-17

It is informed, however, that until replaced by the Office of the President or by this
Ministry the appointive members of the various Sangguniang Bayan, Sangguniang
Panlunsod, and the Sangguniang Panlalawigan shall continue to hold office and to
receive compensation due them under existing laws, rules and regulations.

The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars virtually
confirmed the right of incumbent KB Federation Presidents to hold and maintain their positions until duly
replaced either by the President herself or by the Interior Ministry. Explicit therein was the caveat that
newly elected KB Federation Presidents could not assume the right to represent their respective
associations in any Sanggunian unless their appointments were authenticated by then President Aquino
herself. Truly, prudence impelled Mayor Lecaroz to take the necessary steps to verify the legitimacy of
Red's appointment to the Sanggunian.

Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of Presidents
Macapagal, Marcos and Aquino concerning the doctrine of holdover. These consistently expressed the
view espoused by the executive branch for more than thirty (30) years that the mere fixing of the term of
office in a statute without an express prohibition against holdover is not indicative of a legislative intent to
prohibit it, in light of the legal principle that just as nature abhors a vacuum so does the law abhor a
vacancy in the government. 23Reliance by petitioners on these opinions, as, well as on the pertinent
directives of the then Ministry of Interior and Local Government, provided them with an unassailable
status of good faith in holding over and acting on such basis; and,

Fourth. It is difficult to accept that a person, particularly one who is highly regarded and respected in the
community, would deliberately blemish his good name, and worse, involve his own son in a misconduct
for a measly sum of P23,675.00, such as this case before us. As aptly deduced by Justice Del Rosario. 24

If I were to commit a crime, would I involve my son in it? And if I were a town mayor,
would I ruin my name for the measly sum of P1,894.00 a month? My natural instinct as a
father to protect my own son and the desire, basic in every man, to preserve one's honor
and reputation would suggest a resounding NO to both questions. But the prosecution
ventured to prove in these thirteen cases that precisely because they were father and son
and despite the relatively small amount involved, accused Mayor Francisco Lecaroz
conspired with Lenlie Lecaroz to falsify several municipal payrolls for the purpose of
swindling their own town of the amount of P1,894,00 a month, and the majority has found
them guilty. I find disconhfort with this verdict basically for the reason that there was no
criminal intent on their part to falsify any document or to swindle the government.

The rule is that any mistake on a doubtful or difficult question of law may be the basis of good
faith. 25 In Cabungcal v. Cordova 26 we affirmed the doctrine that an erroneous interpretation of the
meaning of the provisions of an ordinance by a city mayor does not amount to bad faith that would entitle
an aggrieved party to damages against that official. We reiterated this principle in Mabutol
v. Pascual 27 which held that public officials may not be liable for damages in the discharge of their official
functions absent any bad faith. Sanders v. Veridiano II 28 expanded the concept by declaring that under
the law on public officers, acts done in the performance of official duty are protected by the presumption
of good faith.
In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2)
circumstances which purportedly indicated criminal intent. It pointed out that the name of accused Lenlie
Lecaroz was not in the municipal payroll for the first quincena of 1986 which meant that his term had
finally ended, and that the reinstatement of Lenlie Lecaroz by Mayor Francisco Lecaroz in the payroll
periods from 15 January 1986 and thereafter for the next twelve and a half (12-1/2) months was for no
other purpose than to enable him to draw salaries from the municipality. 29 There is however no evidence,
documentary or otherwise, that Mayor Francisco Lecaroz himself caused the name of Lenlie Lecaroz to
be dropped from the payroll for the first quincena of January 1986. On the contrary, it is significant that
while Lenlie Lecaroz' name did not appear in the payroll for the first quincena of January 1986, yet, in the
payroll for the next quincena accused Lenlie Lecaroz was paid for both the first and second quincenas,
and not merely for the second half of the month which would have been the case if he was actually
"dropped" from the payroll for the first fifteen (15) days and then "reinstated" in the succeeding payroll
period, as held by the court a quo.

From all indications, it is possible that the omission was due to the inadequate documentation of Red's
appointment to and assumption of office, or the result of a mere clerical error which was later rectified in
the succeeding payroll. This however cannot be confirmed by the evidence at hand. But since a doubt is
now created about the import of such omission, the principle of equipoise should properly apply. This rule
demands that all reasonable doubt intended to demonstrate error and not a crime should be resolved in
favor of the accused. If the inculpatory facts and circumstances are capable of two or more explanations,
one of which is consistent with the innocence of the accused and the other with his guilt, then the
evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. 30

Petitioners have been convicted for falsification of public documents through an untruthful narration of
facts under Art. 171, par. 4, of The Revised Penal Code. For the offense to be established, the following
elements must concur: (a) the offender makes in a document statements in a narration of facts; (b) the
offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts narrated by the
offender are absolutely false; and, (d) the perversion of truth in the narration of facts was made with the
wrongful intent of injuring a third person.

The first and third elements of the offense have not been established in this case. In approving the
payment of salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed uniformly-worded certifications
thus

I hereby certify on my official oath that the above payroll is correct, and that the services
above stated have been duly rendered. Payment for such services is also hereby
approved from the appropriations indicated.

When Mayor Lecaroz certified to the correctness of the payroll, he was making not a narration of facts but
a conclusion of law expressing his belief that Lenlie Lecaroz was legally holding over as member of the
Sanggunian and thus entitled to the emoluments attached to the position. This is an opinion undoubtedly
involving a legal matter, and any "misrepresentation" of this kind cannot constitute the crime of false
pretenses. 31 In People v. Yanza 32 we
ruled

Now then, considering that when defendant certified she was eligible for the position, she
practically wrote a conclusion of law which turned out to be inexact or erroneous not
entirely groundless we are all of the opinion that she may not be declared guilty of
 falsification, specially because the law which she has allegedly violated (Art. 171,
Revised Penal Code, in connection with other provisions), punishes the making of
untruthful statements in a narration of facts emphasis on facts . . . . Unfortunately, she
made a mistake of judgment; but she could not be held thereby to have intentionally
made a false statement of fact in violation of Art. 171 above-mentioned.

The third element requiring that the narration of facts be absolutely false is not even adequately satisfied
as the belief of Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover member of the Sanggunian
was not entirely bereft of basis, anchored as it was on the universally accepted doctrine of holdover. La
mera inexactitude no es bastante para integrar este delito. 33 If the statements are not altogether false,
there being some colorable truth in them, the crime of falsification is deemed not to have been committed.

Finally, contrary to the finding of the Sandiganbayan, we hold that conspiracy was not proved in this case.
The court a quo used as indication of conspiracy the fact that the accused Mayor certified the payrolls
authorizing payment of compensation to his son Lenlie Lecaroz and that as a consequence thereof the
latter collected his salaries. These are not legally acceptable indicia, for they are the very same acts
alleged in the Information as constituting the crime of estafa through falsification. They cannot qualify as
proof of complicity or unity of criminal intent. Conspiracy must be established separately from the crime
itself and must meet the same degree of proof, i.e., proof beyond reasonable doubt. While conspiracy
need not be established by direct evidence, for it may be inferred from the conduct of the accused before,
during and after the commission of the crime, all taken together however, the evidence must reasonably
be strong enough to show community of criminal design. 34

Perhaps subliminally aware of the paucity of evidence to support it, and if only to buttress its finding of
conspiracy, the Sandiganbayan stressed that the two accused are father and son. Granting that this is not
even ad hominem, we are unaware of any presumption in law that a conspiracy exists simply because the
conspirators are father and son or related by blood.

WHEREFORE, the petition is GRANTED. The assailed Decision of 7 October 1994 and Resolution of 1
October 1997 of the Sandiganbayan are REVERSED and SET ASIDE, and petitioners FRANCISCO M.
LECAROZ and LENLIE LECAROZ are ACQUITTED of all the thirteen (13) counts of estafa through
falsification of public documents (Crim. Cases Nos. 13904-13916). The bail bonds posted for their
provisional liberty are cancelled and released. Costs de oficio.

SO ORDERED.

_____

G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO

T. CRUZ and MANUEL P. REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.
BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases Conversion and
Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was
appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is
challenged in this original petition with prayer for prohibition, preliminary injunction and temporary
restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries
and other operational expenses attached to the office . . . ." 2 Paragraph (d) reads

(d) Chairman administrator The President shall appoint a professional manager as

administrator of the Subic Authority with a compensation to be determined by the Board
subject to the approval of the Secretary of Budget, who shall be the ex oficio chairman of
the Board and who shall serve as the chief executive officer of the Subic
Authority: Provided, however, That for the first year of its operations from the effectivity of
this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and
officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the Philippines,
maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on the following
constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that
"[n]o elective official shall be eligible for appointment or designation in any capacity to any public officer or
position during his tenure," 3 because the City Mayor of Olongapo City is an elective official and the
subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he
President shall . . . . 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", 4 since it was
Congress through the questioned proviso and not the President who appointed the Mayor to the subject
posts; 5 and, (c) Sec. 261, par. (g), of the Omnibus Election Code, which says:

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: . . . (g)
Appointment of new employees, creation of new position, promotion, or giving salary
increases. During the period of forty-five days before a regular election and thirty days
before a special election, (1) any head, official or appointing officer of a government
office, agency or instrumentality, whether national or local, including government-owned
or controlled corporations, who appoints or hires any new employee, whether provisional,
temporary or casual, or creates and fills any new position, except upon prior authority of
the Commission. The Commission shall not grant the authority sought unless it is
satisfied that the position to be filled is essential to the proper functioning of the office or
agency concerned, and that the position shall not be filled in a manner that may influence
the election. As an exception to the foregoing provisions, a new employee may be
appointed in case of urgent need: Provided, however, That notice of the appointment
shall be given to the Commission within three days from the date of the appointment. Any
appointment or hiring in violation of this provision shall be null and void. (2) Any
government official who promotes, or gives any increase of salary or remuneration or
privilege to any government official or employee, including those in government-owned or
controlled corporations . . . .
for the reason that the appointment of respondent Gordon to the subject posts made by respondent
Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May 1992
Elections.

The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided,
however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates
the constitutional proscription against appointment or designation of elective officials to other government
posts.

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations
or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one person, so
that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery of
public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or
employee, like the head of an executive department described in Civil Liberties Union v. Executive
Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as
Secretary of Agrarian Reform, G.R. No. 83815, 6 ". . . . should be allowed to attend to his duties and
responsibilities without the distraction of other governmental duties or employment. He should be
precluded from dissipating his efforts, attention and energy among too many positions of responsibility,
which may result in haphazardness and inefficiency . . . ."

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where
a local elective official will work for his appointment in an executive position in government, and thus
neglect his constituents . . . ." 7

In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the
Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive
Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no
stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the
Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher
interest of the body politic is of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective
official to another post if so allowed by law or by the primary functions of his office. 8 But, the contention is
fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A.
7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the
constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared
unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise
unconstitutional as authority for its validity.
In any case, the view that an elective official may be appointed to another post if allowed by law or by the
primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of
Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by
an appointive official when allowed by law or by the primary functions of his position, the first paragraph
appears to be more stringent by not providing any exception to the rule against appointment or
designation of an elective official to the government post, except as are particularly recognized in the
Constitution itself, e.g., the President as head of the economic and planning agency; 9 the Vice-President,
who may be appointed Member of the Cabinet; 10 and, a member of Congress who may be designated ex
officio member of the Judicial and Bar Council. 11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when
drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in
their deliberation, thus

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer,
is that the prohibition is more strict with respect to elective officials, because in the case
of appointive officials, there may be a law that will allow them to hold other positions.

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive
officials, there will be certain situations where the law should allow them to hold some
other positions. 12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot
be extended to elective officials who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City,
hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, 13 where we stated
that the prohibition against the holding of any other office or employment by the President, Vice-
President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided in
Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the
primary functions of the officials concerned, who are to perform them in an ex officio capacity as provided
by law, without receiving any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making the
subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo City
without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to make
the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the
legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word
"appointed" and, instead, "ex officio" would have been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec.
7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved
by the courts. Indeed, the Senators would not have been concerned with the effects of Sec. 7, first par.,
had they considered the SBMA posts as ex officio.

Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene
Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the Chairman" then
that should foreclose the issue. It is a legislative choice." 15 The Senator took a view that the constitutional
proscription against appointment of elective officials may have been sidestepped if Congress attached the
SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post.
Without passing upon this view of Senator Saguisag, it suffices to state that Congress intended the posts
to be appointive, thus nibbling in the bud the argument that they are ex officio.

The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be
applied to uphold the constitutionality of the challenged proviso since it is not put in issue in the present
case. In the same vein, the argument that if no elective official may be appointed or designated to another
post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double compensation 16 would be
useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In any
case, the Vice-President for example, an elective official who may be appointed to a cabinet post under
Sec. 3, Art. VII, may receive the compensation attached to the cabinet position if specifically authorized by
law.

Petitioners also assail the legislative encroachment on the appointing authority of the President. Section
13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and the Chief
Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of
Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having
authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or designation of a
person, by the person or persons having authority therefor, to fill an office or public function and discharge
the duties of the same. 18 In his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority
vested with the power, of an individual who is to exercise the functions of a given office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., 20 "the choice of a person to fill an office constitutes the essence of
his appointment," 21 and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an
executive act involving the exercise of discretion." 22 In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court 23 we held:

The power to appoint is, in essence, discretionary. The appointing power has the right of
choice which he may exercise freely according to his judgment, deciding for himself who
is best qualified among those who have the necessary qualifications and eligibilities. It is
a prerogative of the appointing power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In
other words, the choice of the appointee is a fundamental component of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at
the same time limit the choice of the President to only one candidate. Once the power of appointment is
conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even
on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to
divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently,
when the qualifications prescribed by Congress can only be met by one individual, such enactment
effectively eliminates the discretion of the appointing power to choose and constitutes an irregular
restriction on the power of appointment. 24

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for
the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the
appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can
qualify for the posts in question, the President is precluded from exercising his discretion to choose whom
to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all
and goes against the very nature itself of appointment.

While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of
operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications where only one, and no other, can qualify. Accordingly,
while the conferment of the appointing power on the President is a perfectly valid legislative act,
the proviso limiting his choice to one is certainly an encroachment on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his
incumbency, he may however resign first from his elective post to cast off the constitutionally-attached
disqualification before he may be considered fit for appointment. The deliberation in the Constitutional
Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term"
with TENURE.

MR. FOZ. The effect of the proposed amendment is to make possible for one to resign
from his position.

MR. DAVIDE. Yes, we should allow that prerogative.

MR. FOZ. Resign from his position to accept an executive position.

MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he
may leave the service, but if he is prohibited from being appointed within the term for
which he was elected, we may be depriving the government of the needed expertise of
an individual. 25

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to

another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his
ineligibility, appointed to other government posts, he does not automatically forfeit his elective office nor
remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is
not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of his
disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the
Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or
employment in the Government . . . during his term without forfeiting his seat . . . ." The difference
between the two provisions is significant in the sense that incumbent national legislators lose their
elective posts only after they have been appointed to another government office, while other incumbent
elective officials must first resign their posts before they can be appointed, thus running the risk of losing
the elective post as well as not being appointed to the other post. It is therefore clear that ineligibility is not
directly related with forfeiture of office. ". . . . The effect is quite different where it is expressly provided by
law that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate
the incumbent of an office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan,
283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or
appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation:
40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the
constitution, or statutes declare that persons holding one office shall be ineligible for election or
appointment to another office, either generally or of a certain kind, the prohibition has been held to
incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is
void (Ala. State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman
of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act
that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and
his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, "one
whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold
valid so far as they involve the interest of the public and third persons, where the duties of the office were
exercised . . . . under color of a known election or appointment, void because the officer was not eligible,
or because there was a want of power in the electing or appointing body, or by reason of some defect or
irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public . . . .
[or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the
same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21
Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other
emoluments which may have been received by respondent Gordon pursuant to his appointment may be
retained by him.

The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality
of the questioned proviso as well as the appointment of said respondent made pursuant thereto need no
longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in
the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated

. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief
Executive of this Authority that we are creating; (much) as I, myself, would like to
because I know the capacity, integrity, industry and dedication of Mayor Gordon; (much)
as we would like to give him this terrific, burdensome and heavy responsibility, we cannot
do it because of the constitutional prohibition which is very clear. It says: "No elective
official shall be appointed or designated to another position in any capacity." 29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a
rock in the ocean amidst the raging of the waves." 30 One of the characteristics of the Constitution is
permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by legitimate needs
but only by passing fancies, temporary passions or occasional infatuations of the people with ideas or
personalities . . . . Such a Constitution is not likely to be easily tampered with to suit political expediency,
personal ambitions or ill-advised agitation for change." 31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That
for the first year of its operations from the effectivity of this Act, the Mayor of the City of Olongapo shall be
appointed as the chairman and chief executive officer of the Subic Authority," is declared unconstitutional;
consequently, the appointment pursuant thereto of the Mayor of Olongapo City, respondent Richard J.
Gordon, is INVALID, hence NULL and VOID.

However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as
such Chairman and Chief Executive Officer may be retained by him, and all acts otherwise legitimate
done by him in the exercise of his authority as officer de facto of SBMA are hereby UPHELD.

SO ORDERED.

_____

G. R. No. 156982 September 8, 2004

NATIONAL AMNESTY COMMISSION, petitioner,

vs.
COMMISSION ON AUDIT, JUANITO G. ESPINO, Director IV, NCR, Commission on Audit, and
ERNESTO C. EULALIA, Resident Auditor, National Amnesty Commission. respondents.

DECISION

CORONA, J.:

This petition for review1 seeks to annul the two decisions of respondent Commission on Audit
(COA)2 dated July 26, 20013 and January 30, 2003,4 affirming the September 21, 1998 ruling5 of the
National Government Audit Office (NGAO). The latter in turn upheld Auditor Ernesto C. Eulalia's order
disallowing the payment of honoraria to the representatives of petitioner's ex officio members, per COA
Memorandum No. 97-038.

Petitioner National Amnesty Commission (NAC) is a government agency created on March 25, 1994 by
then President Fidel V. Ramos through Proclamation No. 347. The NAC is tasked to receive, process and
review amnesty applications. It is composed of seven members: a Chairperson, three regular members
appointed by the President, and the Secretaries of Justice, National Defense and Interior and Local
Government as ex officio members.6

It appears that after personally attending the initial NAC meetings, the three ex officio members turned
over said responsibility to their representatives who were paid honoraria beginning December 12, 1994.
However, on October 15, 1997, NAC resident auditor Eulalia disallowed on audit the payment
of honoraria to these representatives amounting to P255,750 for the period December 12, 1994 to June
27, 1997, pursuant to COA Memorandum No. 97-038. On September 1, 1998, the NGAO upheld the
auditor's order and notices of disallowance were subsequently issued to the following: 7

REPRESENTATIVES AMOUNT
 1. Cesar Averilla
Department of National Defense P 2,500.00
2. Ramon Martinez
Department of National Defense 73,750.00
3. Cielito Mindaro,
Department of Justice 18,750.00
4. Purita Deynata
Department of Justice 62,000.00
5. Alberto Bernardo
Department of the Interior And Local Government 71,250.00
6. Stephen Villaflor
Department of the Interior and Local Government 26,250.00
7. Artemio Aspiras
Department of Justice 1,250.00

P255,750.00

Meanwhile, on April 28, 1999, the NAC passed Administrative Order No. 2 (the new Implementing Rules
and Regulations of Proclamation No. 347), which was approved by then President Joseph Estrada on
October 19, 1999. Section 1, Rule II thereof provides:

Section 1, Composition - The NAC shall be composed of seven (7) members:

a) A Chairperson who shall be appointed by the President;

b) Three (3) Commissioners who shall be appointed by the President;

c) Three (3) Ex-officio Members

1. Secretary of Justice

2. Secretary of National Defense

3. Secretary of the Interior and Local Government

The ex officio members may designate their representatives to the Commission. Said
Representatives shall be entitled to per diems, allowances, bonuses and other benefits as
may be authorized by law. (Emphasis supplied)

Petitioner invoked Administrative Order No. 2 in assailing before the COA the rulings of the resident
auditor and the NGAO disallowing payment of honoraria to the ex officio members' representatives, to no
avail.

Hence, on March 14, 2003, the NAC filed the present petition, contending that the COA committed grave
abuse of discretion in: (1) implementing COA Memorandum No. 97-038 without the required notice and
publication under Article 2 of the Civil Code; (2) invoking paragraph 2, Section 7, Article IX-B of the 1987
Constitution to sustain the disallowance of honoraria under said Memorandum; (3) applying the
Memorandum to the NAC ex officio members' representatives who were all appointive officials with ranks
below that of an Assistant Secretary; (4) interpreting laws and rules outside of its mandate and declaring
Section 1, Rule II of Administrative Order No. 2 null and void, and (5) disallowing the payment
of honoraria on the ground of lack of authority of representatives to attend the NAC meetings in behalf of
the ex officio members.8

We hold that the position of petitioner NAC is against the law and jurisprudence. The COA is correct that
there is no legal basis to grant per diem, honoraria or any allowance whatsoever to the NAC ex
officio members' official representatives.

The Constitution mandates the Commission on Audit to ensure that the funds and properties of the
government are validly, efficiently and conscientiously used. Thus, Article IX-D of the Constitution ordains
the COA to exercise exclusive and broad auditing powers over all government entities or trustees, without
any exception:

Section 2. (1) The Commission on Audit shall have the power, authority and duty to examine,
audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures
or uses of funds and property, owned or held in trust by, or pertaining to, the
Government, or any of its subdivisions, agencies, or instrumentalities, including government-
owned and controlled corporations with original charters, and on a post-audit basis: (a)
constitutional bodies, commissions and offices that have been granted fiscal autonomy under this
Constitution; (b) autonomous state colleges and universities; (c) other government-owned or
controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving
subsidy or equity, directly or indirectly, from or through the government, which are required by law
of the granting institution to submit to such audit as a condition of subsidy or equity. However,
where the internal control system of the audited agencies is inadequate, the Commission may
adopt such measures, including temporary or special pre-audit, as are necessary and appropriate
to correct the deficiencies. It shall keep the general accounts of the Government and, for such
period as may be provided by law, preserve the vouchers and other supporting papers pertaining
thereto.

(2) The Commission shall have exclusive authority, subject to the limitations in this Article,
to define the scope of its audit and examination, establish the techniques and methods
required therefor, and promulgate accounting and auditing rules and regulations,
including those for the prevention and disallowance of irregular, unnecessary,
inexpensive, extravagant, or unconscionable expenditures, or uses of government funds
and properties.

Section 3. No law shall be passed exempting any entity of the Government or its subsidiary in
any guise whatever, or any investment of public funds, from the jurisdiction of the
Commission on Audit. (Emphasis supplied).

It is in accordance with this constitutional mandate that the COA issued Memorandum No. 97-038 on
September 19, 1997:

COMMISSION ON AUDIT MEMORANDUM NO. 97-038

SUBJECT: Implementation of Senate Committee Report No. 509, Committee on Accountability of

Public Officers and Investigations and Committee on Civil Service and Government
Reorganization.

The Commission received a copy of Senate Committee Report No. 509 urging the Commission
on Audit to immediately cause the disallowance of any payment of any form of additional
compensation or remuneration to cabinet secretaries, their deputies and assistants, or
their representatives, in violation of the rule on multiple positions, and to effect the refund
 of any and all such additional compensation given to and received by the officials
concerned, or their representatives, from the time of the finality of the Supreme Court
ruling in Civil Liberties Union v. Executive Secretary to the present. In the Civil Liberties
Union case, the Supreme Court ruled that Cabinet Secretaries, their deputies and
assistants may not hold any other office or employment. It declared Executive Order 284
unconstitutional insofar as it allows Cabinet members, their deputies and assistants to
hold other offices in addition to their primary office and to receive compensation
therefor. The said decision became final and executory on August 19, 1991.

In view thereof, all unit heads/auditors/team leaders of the national government agencies and
government owned or controlled corporations which have effected payment of subject
allowances, are directed to implement the recommendation contained in the subject Senate
Committee Report by undertaking the following audit action:

1. On accounts that have not been audited and settled under certificate of
settlements and balances on record from August 19, 1991 to present - to
immediately issue the Notices of disallowance and corresponding certificate of
settlements and balances.

2. On accounts that have been audited and settled under certificate of settlements and
balances on record - to review and re-open said accounts, issue the corresponding
notices of disallowance, and certify a new balance thereon. It is understood that the re-
opening of accounts shall be limited to those that were settled within the
prescriptive period of three (3) years prescribed in Section 52 of P.D. 1445.

3. On disallowances previously made on these accounts - to submit a report on the status

of the disallowances indicating whether those have been refunded/settled or have
become final and executory and the latest action taken by the Auditor thereon.

All auditors concerned shall ensure that all documents evidencing the disallowed payments are
kept intact on file in their respective offices.

Any problem/issue arising from the implementation of this Memorandum shall be brought
promptly to the attention of the Committee created under COA Officer Order No. 97-698 thru the
Director concerned, for immediate resolution.

An initial report on the implementation of this Memorandum shall be submitted to the Directors
concerned not later than October 31, 1997. Thereafter, a quarterly progress report on the status
of disallowances made shall be submitted, until all the disallowances shall have been enforced.

The Committee created under COA Office Order No. 97-698, dated September 10, 1997, shall
supervise the implementation of this Memorandum which shall take effect immediately and shall
submit a consolidated report thereon in response to the recommendation of the Senate
Committee on Accountability of Public Officers and Investigation and Committee on Civil Service
and Government Reorganization.9(Emphasis supplied)

Contrary to petitioner's claim, COA Memorandum No. 97-038 does not need, for validity and effectivity,
the publication required by Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in
the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after
such publication.
 We clarified this publication requirement in Taada vs. Tuvera:10

[A]ll statutes, including those of local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated by
the legislature or, at present, directly conferred by the Constitution. Administrative rules
and regulations must also be published if their purpose is to enforce or implement
existing law pursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither
is publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties. (Emphasis supplied.)

COA Memorandum No. 97-038 is merely an internal and interpretative regulation or letter of instruction
which does not need publication to be effective and valid. It is not an implementing rule or regulation of a
statute but a directive issued by the COA to its auditors to enforce the self-executing prohibition imposed
by Section 13, Article VII of the Constitution on the President and his official family, their deputies and
assistants, or their representatives from holding multiple offices and receiving double compensation.

Six years prior to the issuance of COA Memorandum No. 97-038, the Court had the occasion to
categorically explain this constitutional prohibition in Civil Liberties Union vs. The Executive Secretary:11

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold other government offices or positions in addition to
their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article
VII of the 1987 Constitution, which provides as follows:

"Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly practice
any other profession, participate in any business, or be financially interested in any contract with,
or in any franchise, or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office."

xxx xxx xxx

[D]oes the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet
members, their deputies or assistants are concerned admit of the broad exceptions made
for appointive officials in general under Section 7, par. (2), Article IX-B which, for easy
reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary functions of
his position, no appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporation or their subsidiaries."

We rule in the negative.

xxx xxx xxx

But what is indeed significant is the fact that although Section 7, Article IX-B already contains
a blanket prohibition against the holding of multiple offices or employment in the
government subsuming both elective and appointive public officials, the Constitutional
Commission should see it fit to formulate another provision, Sec. 13, Article VII,
specifically prohibiting the President, Vice-President, members of the Cabinet, their
deputies and assistants from holding any other office or employment during their tenure,
unless otherwise provided in the Constitution itself.

xxx xxx xxx

Thus, while all other appointive officials in the civil service are allowed to hold other office
or employment in the government during their tenure when such is allowed by law or by
the primary functions of their positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by the Constitution itself. In other
words, Section 7, Article IX-B is meant to lay down the general rule applicable to all
elective and appointive public officials and employees, while Section 13, Article VII is
meant to be the exception applicable only to the President, the Vice-President, Members of
the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution"
in Section 13, Article VII cannot possibly refer to the broad exceptions provided under
Section 7, Article IX-B of the 1987 Constitution. . . .

xxx xxx xxx

The prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the Constitution must not, however, be construed as applying to posts
occupied by the Executive officials specified therein without additional compensation in
an ex-officio capacity as provided by law and as required by the primary functions of said
officials' office. The reason is that these posts do no comprise "any other office" within
the contemplation of the constitutional prohibition but are properly an imposition of
additional duties and functions on said officials.

xxx xxx xxx

[T]he prohibition under Section 13, Article VII is not to be interpreted as covering positions
held without additional compensation in ex-officio capacities as provided by law and as
required by the primary functions of the concerned official's office. The term ex-officio
means "from office; by virtue of office." It refers to an "authority derived from official character
merely, not expressly conferred upon the individual character, but rather annexed to the official
position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of
office, and without any other appointment or authority than that conferred by the office." An ex-
officio member of a board is one who is a member by virtue of his title to a certain office, and
without further warrant or appointment. To illustrate, by express provision of law, the Secretary
of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine
Ports Authority, and the Light Rail Transit Authority.

xxx xxx xxx

The ex-officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for
his services in the said position. The reason is that these services are already paid for and
covered by the compensation attached to his principal office. x x x
 xxx xxx xxx

[E]x-officio posts held by the executive official concerned without additional

compensation as provided by law and as required by the primary functions of his office do
not fall under the definition of "any other office" within the contemplation of the
constitutional prohibition... (Emphasis supplied).

Judicial decisions applying or interpreting the laws or the Constitution, such as the Civil Liberties
Union doctrine, form part of our legal system.12 Supreme Court decisions assume the same authority as
valid statutes.13 The Court's interpretation of the law is part of that law as of the date of enactment
because its interpretation merely establishes the contemporary legislative intent that the construed law
purports to carry into effect.14

COA Memorandum No. 97-038 does not, in any manner or on its own, rule against or affect the right of
any individual, except those provided for under the Constitution. Hence, publication of said Memorandum
is not required for it to be valid, effective and enforceable.

In Civil Liberties Union, we elucidated on the two constitutional prohibitions against holding multiple
positions in the government and receiving double compensation: (1) the blanket prohibition of paragraph
2, Section 7, Article IX-B on all government employees against holding multiple government offices,
unless otherwise allowed by law or the primary functions of their positions, and (2) the stricter prohibition
under Section 13, Article VII on the President and his official family from holding any other office,
profession, business or financial interest, whether government or private, unless allowed by the
Constitution.

The NAC ex officio members' representatives who were all appointive officials with ranks below Assistant
Secretary are covered by the two constitutional prohibitions.

First, the NAC ex officio members' representatives are not exempt from the general prohibition because
there is no law or administrative order creating a new office or position and authorizing additional
compensation therefor.

Sections 54 and 56 of the Administrative Code of 1987 reiterate the constitutional prohibition against
multiple positions in the government and receiving additional or double compensation:

SEC. 54. Limitation on Appointment. - (1) No elective official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure.

xxx xxx xxx

(3) Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.

xxx xxx xxx

SEC. 56. Additional or Double Compensation. -- No elective or appointive public officer or

employee shall receive additional or double compensation unless specifically authorized by law
nor accept without the consent of the President, any present, emolument, office, or title of any
kind form any foreign state.

Pensions and gratuities shall not be considered as additional, double or indirect compensation.
RA 6758, the Salary Standardization Law, also bars the receipt of such additional emolument.

The representatives in fact assumed their responsibilities not by virtue of a new appointment but by mere
designation from the ex officio members who were themselves also designated as such.

There is a considerable difference between an appointment and designation. An appointment is the

selection by the proper authority of an individual who is to exercise the powers and functions of a given
office; a designation merely connotes an imposition of additional duties, usually by law, upon a person
already in the public service by virtue of an earlier appointment. 15

Designation does not entail payment of additional benefits or grant upon the person so designated the
right to claim the salary attached to the position. Without an appointment, a designation does not entitle
the officer to receive the salary of the position. The legal basis of an employee's right to claim the salary
attached thereto is a duly issued and approved appointment to the position, 16 and not a mere designation.

Second, the ex officio members' representatives are also covered by the strict constitutional prohibition
imposed on the President and his official family.

Again, in Civil Liberties Union, we held that cabinet secretaries, including their deputies and assistants,
who hold positions in ex officio capacities, are proscribed from receiving additional compensation
because their services are already paid for and covered by the compensation attached to their principal
offices. Thus, in the attendance of the NAC meetings, the ex officio members were not entitled to, and
were in fact prohibited from, collecting extra compensation, whether it was called per diem,
honorarium, allowance or some other euphemism. Such additional compensation is prohibited by the
Constitution.

Furthermore, in de la Cruz vs. COA17 and Bitonio vs. COA,18 we upheld COA's disallowance of the
payment of honoraria and per diems to the officers concerned who sat as ex officio members or
alternates. The agent, alternate or representative cannot have a better right than his principal, the ex
officio member. The laws, rules, prohibitions or restrictions that cover the ex officio member apply with
equal force to his representative. In short, since the ex officio member is prohibited from receiving
additional compensation for a position held in an ex officio capacity, so is his representative likewise
restricted.

The Court also finds that the re-opening of the NAC accounts within three years after its settlement is
within COA's jurisdiction under Section 52 of Presidential Decree No. 1445, promulgated on June 11,
1978:

SECTION 52. Opening and revision of settled accounts. (1) At any time before the expiration of
three years after the settlement of any account by an auditor, the Commission may motu propio
review and revise the account or settlement and certify a new balance.

More importantly, the Government is never estopped by the mistake or error on the part of its
agents.19Erroneous application and enforcement of the law by public officers do not preclude subsequent
corrective application of the statute.

In declaring Section 1, Rule II of Administrative Order No. 2 s. 1999 null and void, the COA ruled that:

Petitioner further contends that with the new IRR issued by the NAC authorizing the ex-officio
members to designate representatives to attend commission meetings and entitling them to
receive per diems, honoraria and other allowances, there is now no legal impediment since it was
approved by the President. This Commission begs to disagree. Said provision in the new IRR is
null and void for having been promulgated in excess of its rule-making authority. Proclamation
 No. 347, the presidential issuance creating the NAC, makes no mention that representatives of
ex-officio members can take the place of said ex-officio members during its meetings and can
receive per diems and allowances. This being the case, the NAC, in the exercise of its quasi-
legislative powers, cannot add, expand or enlarge the provisions of the issuance it seeks to
implement without committing an ultra vires act.20

We find that, on its face, Section 1, Rule II of Administrative Order No. 2 is valid, as it merely provides
that:

The ex officio members may designate their representatives to the Commission. Said
Representatives shall be entitled to per diems, allowances, bonuses and other benefits as may
be authorized by law. (Emphasis supplied).

The problem lies not in the administrative order but how the NAC and the COA interpreted it.

First, the administrative order itself acknowledges that payment of allowances to the representatives must
be authorized by the law, that is, the Constitution, statutes and judicial decisions. However, as already
discussed, the payment of such allowances is not allowed, prohibited even.

Second, the administrative order merely allows the ex officio members to designate their representatives
to NAC meetings but not to decide for them while attending such meetings. Section 4 of the administrative
order categorically states:

Decisions of the NAC shall be arrived at by a majority vote in a meeting where there is a quorum
consisting of at least four members.

Thus, although the administrative order does not preclude the representatives from attending the
NAC meetings, they may do so only as guests or witnesses to the proceedings. They cannot
substitute for the ex officio members for purposes of determining quorum, participating in
deliberations and making decisions.

Lastly, we disagree with NAC's position that the representatives are de facto officers and as such are
entitled to allowances, pursuant to our pronouncement in Civil Liberties Union:

"where there is no de jure officer, a de facto officer, who in good faith has had possession of the
office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of
the office, and may in appropriate action recover the salary, fees and other compensation
attached to the office."

A de facto officer "derives his appointment from one having colorable authority to appoint, if the
office is an appointive office, and whose appointment is valid on its face. (He is) one who is in
possession of an office and is discharging its duties under color of authority, by which is meant
authority derived from an appointment, however irregular or informal, so that the incumbent be
not a mere volunteer."21

The representatives cannot be considered de facto officers because they were not appointed but were
merely designated to act as such. Furthermore, they are not entitled to something their own principals are
prohibited from receiving. Neither can they claim good faith, given the express prohibition of the
Constitution and the finality of our decision in Civil Liberties Union prior to their receipt of such
allowances.

WHEREFORE the petition is hereby DISMISSED for lack of merit.

SO ORDERED.

_____

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of
Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO
FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as
Secretary of Finance; SEDFREY ORDOEZ, as Secretary of Justice; FRANKLIN N. DRILON, as
Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V.
RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO
FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of
Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE
ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health;
REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO
CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the National
Economic Development Authority, respondents.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved
jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by
President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order
are:

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the
Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive
Department may, in addition to his primary position, hold not more than two positions in the
government and government corporations and receive the corresponding compensation
therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to
boards, councils or bodies of which the President is the Chairman.

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive

official of the Executive Department holds more positions than what is allowed in Section 1
hereof, they (sic) must relinquish the excess position in favor of the subordinate official who is
next in rank, but in no case shall any official hold more than two positions other than his primary
position.
 Sec. 3. In order to fully protect the interest of the government in government-owned or controlled
corporations, at least one-third (1/3) of the members of the boards of such corporation should
either be a secretary, or undersecretary, or assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold other government offices or positions in addition to
their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article
VII of the 1987 Constitution, 2 which provides as follows:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly practice
any other profession, participate in any business, or be financially interested in any contract with,
or in any franchise, or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the
Cabinet, along with the other public officials enumerated in the list attached to the petitions as Annex "C"
in G.R. No.
83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment during their
tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284,
petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a temporary restraining order directing public
respondents therein to cease and desist from holding, in addition to their primary positions, dual or
multiple positions other than those authorized by the 1987 Constitution and from receiving any salaries,
allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions,
and compelling public respondents to return, reimburse or refund any and all amounts or benefits that
they may have received from such positions.

Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted
"absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey
Ordoez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July
23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet members, their deputies
(undersecretaries) and assistant secretaries may hold other public office, including membership in the
boards of government corporations: (a) when directly provided for in the Constitution as in the case of the
Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8,
paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their
respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25,
1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No.
284. 6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order
No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision in another
article, Section 7, par. (2), Article I-XB. This "strained linkage" between the two provisions, each
addressed to a distinct and separate group of public officers one, the President and her official family,
and the other, public servants in general allegedly "abolished the clearly separate, higher, exclusive,
and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the
Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of
government expected to lead by example." 7Article IX-B, Section 7, par. (2) 8 provides:

Sec. 7. . . . . .
 Unless otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further
elucidated and clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of
1988, 10being the first official construction and interpretation by the Secretary of Justice of Section 13,
Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject of
appointments or designations of an appointive executive official to positions other than his primary
position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated
pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ
Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation
imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so
designated as ex-officio are allowed by the primary functions of the public official, but only to the holding
of multiple positions which are not related to or necessarily included in the position of the public official
concerned (disparate positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal
submission that it adds exceptions to Section 13, Article VII other than those provided in the Constitution.
According to petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only
exceptions against holding any other office or employment in Government are those provided in the
Constitution, namely: (1) The Vice-President may be appointed as a Member of the Cabinet under
Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil
Service Commission applies to officers and employees of the Civil Service in general and that said
exceptions do not apply and cannot be extended to Section 13, Article VII which applies specifically to the
President, Vice-President, Members of the Cabinet and their deputies or assistants.

There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet
and their deputies or assistants from holding dual or multiple positions in the Government admits of
certain exceptions. The disagreement between petitioners and public respondents lies on the
constitutional basis of the exception. Petitioners insist that because of the phrase "unless otherwise
provided in this Constitution" used in Section 13 of Article VII, the exception must be expressly provided in
the Constitution, as in the case of the Vice-President being allowed to become a Member of the Cabinet
under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated an ex-
officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the
other hand, maintain that the phrase "unless otherwise provided in the Constitution" in Section 13, Article
VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein
are concerned.

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution
insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions
made for appointive officials in general under Section 7, par. (2), Article I-XB which, for easy reference is
quoted anew, thus: "Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or any subdivision, agency
or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries."

We rule in the negative.

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the condition
and circumstances under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words consonant to that reason and
calculated to effect that purpose. 11

The practice of designating members of the Cabinet, their deputies and assistants as members of the
governing bodies or boards of various government agencies and instrumentalities, including government-
owned and controlled corporations, became prevalent during the time legislative powers in this country
were exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There was
a proliferation of newly-created agencies, instrumentalities and government-owned and controlled
corporations created by presidential decrees and other modes of presidential issuances where Cabinet
members, their deputies or assistants were designated to head or sit as members of the board with the
corresponding salaries, emoluments, per diems, allowances and other perquisites of office. Most of these
instrumentalities have remained up to the present time.

This practice of holding multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. In fact,
the holding of multiple offices in government was strongly denounced on the floor of the Batasang
Pambansa. 12 This condemnation came in reaction to the published report of the Commission on Audit,
entitled "1983 Summary Annual Audit Report on: Government-Owned and Controlled Corporations, Self-
Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of Membership in
Governing Boards of Government-Owned and Controlled Corporations as of December 31, 1983."

Particularly odious and revolting to the people's sense of propriety and morality in government service
were the data contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-
nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three
(23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and
Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and
Jose A. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven
(11) each; and Lilia Bautista and Teodoro Q. Pea of ten (10) each. 13

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos
regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the
people that the 1986 Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed Constitution the provisions under
consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple
governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during
the deliberations in these cases, one of the strongest selling points of the 1987 Constitution during the
campaign for its ratification was the assurance given by its proponents that the scandalous practice of
Cabinet members holding multiple positions in the government and collecting unconscionably excessive
compensation therefrom would be discontinued.

But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket
prohibition against the holding of multiple offices or employment in the government subsuming both
elective and appointive public officials, the Constitutional Commission should see it fit to formulate
another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of
the Cabinet, their deputies and assistants from holding any other office or employment during their tenure,
unless otherwise provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in
question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President
and his official family in so far as holding other offices or employment in the government or elsewhere is
concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of
the Constitution on the disqualifications of certain public officials or employees from holding other offices
or employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives
may hold any other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o
member of the armed forces in the active service shall, at any time, be appointed in any capacity to a
civilian position in the Government, including government-owned or controlled corporations or any of their
subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise
allowed by law or by the primary functions of his position, no appointive official shall hold any other office
or employment in the Government."

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states
that "(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall
not, unless otherwise provided in this Constitution, hold any other office or employment during their
tenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in the
Government." The prohibition imposed on the President and his official family is therefore all-embracing
and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said
tenure, directly or indirectly, practice any other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official
family, which prohibitions are not similarly imposed on other public officials or employees such as the
Members of Congress, members of the civil service in general and members of the armed forces, are
proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself
and to impose upon said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family
was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong
noted during the floor deliberations and debate that there was no symmetry between the Civil Service
prohibitions, originally found in the General Provisions and the anticipated report on the Executive
Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the
members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints
on them are called for because there is more possibility of abuse in their case." 14

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment
in the government during their tenure when such is allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the
general rule applicable to all elective and appointive public officials and employees, while Section 13,
Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of
the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13,
Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987
Constitution. To construe said qualifying phrase as respondents would have us do, would render nugatory
and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter
prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with
respect to holding other offices or employment in the government during their tenure. Respondents'
interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article
IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the
high-ranking officials of the Executive Branch from the President to Assistant Secretary, on the one hand,
and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on
the other, may hold any other office or position in the government during their tenure.

Moreover, respondents' reading of the provisions in question would render certain parts of the
Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13
of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but
who as an elective public official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for
appointment or designation in any capacity to any public office or position during his tenure." Surely, to
say that the phrase "unless otherwise provided in this Constitution" found in Section 13, Article VII has
reference to Section 7, par. (1) of Article I-XB would render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a member of the Cabinet, 15 and to act as President
without relinquishing the Vice-Presidency where the President shall not nave been chosen or fails to
qualify.16 Such absurd consequence can be avoided only by interpreting the two provisions under
consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e.,
Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2)
of Article I-XB be construed vis-a-vis Section 13, Article VII.

It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be

separated from all the others, to be considered alone, but that all the provisions bearing upon a particular
subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the
instrument. 17Sections bearing on a particular subject should be considered and interpreted together as to
effectuate the whole purpose of the Constitution 18 and one section is not to be allowed to defeat another,
if by any reasonable construction, the two can be made to stand together. 19

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction
which will render every word operative, rather than one which may make the words idle and nugatory. 20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding
multiple offices or employment in the government during their tenure, the exception to this prohibition
must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that
it must be understood as intended to be a positive and unequivocal negation of the privilege of holding
multiple government offices or employment. Verily, wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a positive and unequivocal negation. 21 The phrase
"unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member
of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided
under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the
Constitution must not, however, be construed as applying to posts occupied by the Executive officials
specified therein without additional compensation in an ex-officio capacity as provided by law and
as required 22 by the primary functions of said officials' office. The reason is that these posts do no
comprise "any other office" within the contemplation of the constitutional prohibition but are properly an
imposition of additional duties and functions on said officials. 23 To characterize these posts otherwise
would lead to absurd consequences, among which are: The President of the Philippines cannot chair the
National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can
the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and
Employment and Local Government sit in this Council, which would then have no reason to exist for lack
of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be
prohibited.

The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower
and Youth Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which
are attached to his department for policy coordination and guidance. Neither can his Undersecretaries
and Assistant Secretaries chair these agencies.

The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower
ranking employees in providing policy direction in the areas of money, banking and credit. 25

Indeed, the framers of our Constitution could not have intended such absurd consequences. A
Constitution, viewed as a continuously operative charter of government, is not to be interpreted as
demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible,
should be avoided. 26

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held
without additional compensation in ex-officio capacities as provided by law and as required by the primary
functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It
refers to an "authority derived from official character merely, not expressly conferred upon the individual
character, but rather annexed to the official position." Ex-officio likewise denotes an "act done in an official
character, or as a consequence of office, and without any other appointment or authority than that
conferred by the office." 27 An ex-officio member of a board is one who is a member by virtue of his title to
a certain office, and without further warrant or appointment. 28 To illustrate, by express provision of law,
the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the
Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and
Apparel Control and Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A.
3137) reveals that for the chairman and members of the Board to qualify they need only be designated by
the respective department heads. With the exception of the representative from the private sector, they
sit ex-officio. In order to be designated they must already be holding positions in the offices mentioned in
the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs,
cannot, under the act, be designated a representative from that office. The same is true with respect to
the representatives from the other offices. No new appointments are necessary. This is as it should be,
because the representatives so designated merely perform duties in the Board in addition to those
already performed under their original appointments." 32

The term "primary" used to describe "functions" refers to the order of importance and thus means chief or
principal function. The term is not restricted to the singular but may refer to the plural. 33 The additional
duties must not only be closely related to, but must be required by the official's primary functions.
Examples of designations to positions by virtue of one's primary functions are the Secretaries of Finance
and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority 34 and the Civil Aeronautics Board.

If the functions required to be performed are merely incidental, remotely related, inconsistent,
incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions
would fall under the purview of "any other office" prohibited by the Constitution. An example would be the
Press Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming
Corporation. The same rule applies to such positions which confer on the cabinet official management
functions and/or monetary compensation, such as but not limited to chairmanships or directorships in
government-owned or controlled corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their
deputies or assistants which are not inconsistent with those already prescribed by their offices or
appointments by virtue of their special knowledge, expertise and skill in their respective executive offices
is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency,
policy direction, continuity and coordination among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and implementing laws affecting national interest and
general welfare and delivering basic services to the people. It is consistent with the power vested on the
President and his alter egos, the Cabinet members, to have control of all the executive departments,
bureaus and offices and to ensure that the laws are faithfully executed. 35 Without these additional duties
and functions being assigned to the President and his official family to sit in the governing bodies or
boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as
required by their primary functions, they would be supervision, thereby deprived of the means for control
and resulting in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may not transgress the
prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions
must be required by the primary functions of the official concerned, who is to perform the same in an ex-
officio capacity as provided by law, without receiving any additional compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that
the official concerned has no right to receive additional compensation for his services in the said position.
The reason is that these services are already paid for and covered by the compensation attached to his
principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the
Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the
primary function of his principal office in defining policy in monetary and banking matters, which come
under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any
extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or some
other such euphemism. By whatever name it is designated, such additional compensation is prohibited by
the Constitution.

It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian
Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions,
the exception "unless required by the functions of his position," 36 express reference to certain high-
ranking appointive public officials like members of the Cabinet were made. 37 Responding to a query of
Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when although not
required by current law, membership of certain high-ranking executive officials in other offices and
corporations is necessary by reason of said officials' primary functions. The example given by
Commissioner Monsod was the Minister of Trade and Industry. 38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying that
additional functions and duties flowing from the primary functions of the official may be imposed upon him
without offending the constitutional prohibition under consideration, it cannot, however, be taken as
authority for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy
between the two Commissioners took place in the plenary session of September 27, 1986. Under
consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on
General Provisions. 39 At that time, the article on the Civil Service Commission had been approved on
third reading on July 22, 1986, 40 while the article on the Executive Department, containing the more
specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986. 41 It
was only after the draft Constitution had undergone reformatting and "styling" by the Committee on Style
that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and reworded
"Unless otherwise allowed by law or by the primary functions of his position. . . ."

What was clearly being discussed then were general principles which would serve as constitutional
guidelines in the absence of specific constitutional provisions on the matter. What was primarily at issue
and approved on that occasion was the adoption of the qualified and delimited phrase "primary functions"
as the basis of an exception to the general rule covering all appointive public officials. Had the
Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it
could have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of
the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service
Commission.
That this exception would in the final analysis apply also to the President and his official family is by
reason of the legal principles governing additional functions and duties of public officials rather than by
virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additional functions
and duties "required," as opposed to "allowed," by the primary functions may be considered as not
constituting "any other office."

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be
had only when other guides fail 42 as said proceedings are powerless to vary the terms of the Constitution
when the meaning is clear.1wphi1 Debates in the constitutional convention "are of value as showing the
views of the individual members, and as indicating the reasons for their votes, but they give us no light as
to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose
votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the
constitution from what appears upon its face." 43 The proper interpretation therefore depends more on
how it was understood by the people adopting it than in the framers's understanding thereof. 44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the
President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their
tenure multiple offices or employment in the government, except in those cases specified in the
Constitution itself and as above clarified with respect to posts held without additional compensation in
an ex-officio capacity as provided by law and as required by the primary functions of their office, the
citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on
the general rule laid down for all appointive officials should be considered as mere personal opinions
which cannot override the constitution's manifest intent and the people' understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B
of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly
restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may
hold in addition to their primary position to not more than two (2) positions in the government and
government corporations, Executive Order No. 284 actually allows them to hold multiple offices or
employment in direct contravention of the express mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a strict
application of the prohibition mandated under Section 13, Article VII on the operations of the Government,
considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by
reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-
officio posts held by the executive official concerned without additional compensation as provided by law
and as required by the primary functions of his office do not fall under the definition of "any other office"
within the contemplation of the constitutional prohibition. With respect to other offices or employment held
by virtue of legislation, including chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more
apparent than real. Being head of an executive department is no mean job. It is more than a full-time job,
requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived
from a department head's ability and expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental offices or employment. He should be
precluded from dissipating his efforts, attention and energy among too many positions of responsibility,
which may result in haphazardness and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this stage of our national and
economic development, far outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents
Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local
Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo
R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices
or employment, as herein defined, in the government, including government-owned or controlled
corporations and their subsidiaries. With respect to the other named respondents, the petitions have
become moot and academic as they are no longer occupying the positions complained of.

During their tenure in the questioned positions, respondents may be considered de facto officers and as
such entitled to emoluments for actual services rendered. 46 It has been held that "in cases where there is
no de jure, officer, a de facto officer, who, in good faith has had possession of the office and has
discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other compensations attached to the office. This doctrine
is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by
the services of an officer de facto and then be freed from all liability to pay any one for such
services. 47 Any per diem, allowances or other emoluments received by the respondents by virtue of
actual services rendered in the questioned positions may therefore be retained by them.

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order
No. 284 is hereby declared null and void and is accordingly set aside.

SO ORDERED.

______

G.R. No. L-68159 March 18, 1985

HOMOBONO ADAZA, petitioner,

vs.
FERNANDO PACANA, JR., respondent

ESCOLIN, J.:

The issues posed for determination in this petition for prohibition with prayer for a writ of preliminary
injunction and/or restraining order are: [1] whether or not a provincial governor who was elected and had
qualified as a Mambabatas Pambansa [MP] can exercise and discharge the functions of both offices
simultaneously; and [2] whether or not a vice-governor who ran for the position of Mambabatas
Pambansa, but lost, can continue serving as vice-governor and subsequently succeed to the office of
governor if the said office is vacated.

The factual background of the present controversy is as follows:

Petitioner Homobono A. Adaza was elected governor of the province of Misamis Oriental in the January
30, 1980 elections. He took his oath of office and started discharging his duties as provincial governor on
March 3, 1980. Elected vice-governor for said province in the same elections was respondent Fernando
Pacana, Jr., who likewise qualified for and assumed said office on March 3, 1980. Under the law, their
respective terms of office would expire on March 3, 1986.

On March 27, 1984, respondent Pacana filed his certificate of candidacy for the May 14, 1984 Batasan
Pambansa elections; petitioner Adaza followed suit on April 27, 1984. In the ensuing elections, petitioner
won by placing first among the candidates, while respondent lost.
Petitioner took his oath of office as Mambabatas Pambansa on July 19, 1984 1 and since then he has
discharged the functions of said office.

On July 23, 1984, respondent took his oath of office as governor of Misamis Oriental before President
Ferdinand E. Marcos, 2 and started to perform the duties of governor on July 25, 1984.

Claiming to be the lawful occupant of the governor's office, petitioner has brought this petition to exclude
respondent therefrom. He argues that he was elected to said office for a term of six years, that he
remains to be the governor of the province until his term expires on March 3, 1986 as provided by law,
and that within the context of the parliamentary system, as in France, Great Britain and New Zealand, a
local elective official can hold the position to which he had been elected and simultaneously be an elected
member of Parliament.

Petitioner further contends that respondent Pacana should be considered to have abandoned or resigned
from the position of vice-governor when he filed his certificate of candidacy for the 1984 Batas Pambansa
elections; and since respondent had reverted to the status of a mere private citizen after he lost in the
Batas Pambansa elections, he could no longer continue to serve as vice-governor, much less assume the
office of governor.

1. The constitutional prohibition against a member of the Batasan Pambansa from holding any other office
or employment in the government during his tenure is clear and unambiguous. Section 10, Article VIII of
the 1973 Constitution provides as follows:

Section 10 A member of the National Assembly [now Batasan Pambansa shall not hold
any other office or employment in the government or any subdivision, agency or
instrumentality thereof, including government owned or controlled corporations, during his
tenure, except that of prime minister or member of the cabinet. ...

The language used in the above-cited section is plain, certain and free from ambiguity. The only
exceptions mentioned therein are the offices of prime minister and cabinet member. The wisdom or
expediency of the said provision is a matter which is not within the province of the Court to determine.

A public office is a public trust. 3 It is created for the interest and the benefit of the people. As such, a
holder thereof "is subject to such regulations and conditions as the law may impose" and "he cannot
complain of any restrictions which public policy may dictate on his holding of more than one office." 4 It is
therefore of no avail to petitioner that the system of government in other states allows a local elective
official to act as an elected member of the parliament at the same time. The dictate of the people in whom
legal sovereignty lies is explicit. It provides no exceptions save the two offices specifically cited in the
above-quoted constitutional provision. Thus, while it may be said that within the purely parliamentary
system of government no incompatibility exists in the nature of the two offices under consideration, as
incompatibility is understood in common law, the incompatibility herein present is one created by no less
than the constitution itself. In the case at bar, there is no question that petitioner has taken his oath of
office as an elected Mambabatas Pambansa and has been discharging his duties as such. In the light of
the oft-mentioned constitutional provision, this fact operated to vacate his former post and he cannot now
continue to occupy the same, nor attempt to discharge its functions.

2. The second proposition advanced by petitioner is that respondent Pacana, as a mere private citizen,
had no right to assume the governorship left vacant by petitioner's election to the Batasan Pambansa. He
maintains that respondent should be considered as having abandoned or resigned from the vice-
governorship when he filed his certificate of candidacy for the Batas Pambansa elections. The point
pressed runs afoul of Batas Pambansa Blg. 697, the law governing the election of members of the
Batasan Pambansa on May 14, 1984, Section 13[2] of which specifically provides that "governors,
mayors, members of the various sangguniang or barangay officials shall, upon filing a certificate of
candidacy, be considered on forced leave of absence from office." Indubitably, respondent falls within the
coverage of this provision, considering that at the time he filed his certificate of candidacy for the 1984
Batasan Pambansa election he was a member of the Sangguniang Panlalawigan as provided in Sections
204 and 205 of Batas Pambansa Blg. 337, 5 otherwise known as the Local Government Code. The
reason the position of vice-governor was not included in Section 13[2] of BP Blg. 697 is explained by the
following interchange between Assemblymen San Juan and Davide during the deliberations on said
legislation:

MR. DAVIDE. If I was able to get correctly the proposed amendment it would cover only
governors and members of the different sanggunians? Mayor, governors?

MR. SAN JUAN. Governors, mayors, members of the various sanggunian or barangay
officials. A vice-governor is a member of the Sanggunian Panlalawigan.

MR. DAVIDE. All. Why don't we instead use the word, "Local officials?

MR. SAN JUAN. Well, Mr. Speaker, your humble representation ...

MR. DAVIDE. And, secondly, why don't we include the vice-governor, the vice-mayors?

MR. SAN JUAN. Because they are members of the Sanggunians, Mr. Speaker. They are
covered by the provision on members of sanggunian. [Record of Proceedings, February
20, 1984, p. 92, Rollo]

Thus, when respondent reassumed the position of vice-governor after the Batas Pambansa elections, he
was acting within the law. His succession to the governorship was equally legal and valid, the same being
in accordance with Section 204[2] [a] of the same Local Government Code, which reads as follows:

SECTION 204. Powers, Duties and Privileges:

1] x x x

2] He shall:

a] Assume the office of the governor for the unexpired term of the latter in the cases
provided for in Section 48, paragraph 1 6 of this Code;

WHEREFORE, the instant petition is hereby dismissed. No costs.

SO ORDERED.

_________
A.M. No. 88-7-1861-RTC October 5, 1988
IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF THE ILOCOS NORTE
PROVINCIAL COMMITTEE ON JUSTICE.

PADILLA, J.:

On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui, Ilocos Norte, Branch 19,
sent this Court a letter which reads:

Hon. Marcelo Fernan

Chief Justice of the Supreme Court
of the Philippines
Manila

Thru channels: Hon. Leo Medialdea

Court Administrator
Supreme Court of the Philippines

Sir:

By Executive Order RF6-04 issued on June 21, 1988 by the Honorable Provincial
Governor of Ilocos Norte, Hon. Rodolfo C. Farinas, I was designated as a member of the
Ilocos Norte Provincial Committee on Justice created pursuant to Presidential Executive
Order No. 856 of 12 December 1986, as amended by Executive Order No. 326 of June 1,
1988. In consonance with Executive Order RF6-04, the Honorable Provincial Governor of
Ilocos Norte issued my appointment as a member of the Committee. For your ready
reference, I am enclosing herewith machine copies of Executive Order RF6-04 and the
appointment.

Before I may accept the appointment and enter in the discharge of the powers and duties
of the position as member of the Ilocos (Norte) Provincial Committee on Justice, may I
have the honor to request for the issuance by the Honorable Supreme Court of a
Resolution, as follows:

(1) Authorizing me to accept the appointment and to as assume and

discharge the powers and duties attached to the said position;

(2) Considering my membership in the Committee as neither violative of

the Independence of the Judiciary nor a violation of Section 12, Article
VIII, or of the second paragraph of Section .7, Article IX (B), both of the
Constitution, and will not in any way amount to an abandonment of my
present position as Executive Judge of Branch XIX, Regional Trial Court,
First Judicial Region, and as a member of the Judiciary; and

(3) Consider my membership in the said Committee as part of the

primary functions of an Executive Judge.
 May I please be favored soon by your action on this request.

Very respectfully yours,

(Sgd) RODOLFO U. MANZANO

Judge

An examination of Executive Order No. 856, as amended, reveals that Provincial/City Committees on
Justice are created to insure the speedy disposition of cases of detainees, particularly those involving the
poor and indigent ones, thus alleviating jail congestion and improving local jail conditions. Among the
functions of the Committee are

3.3 Receive complaints against any apprehending officer, jail warden, final or judge who
may be found to have committed abuses in the discharge of his duties and refer the
same to proper authority for appropriate action;

3.5 Recommend revision of any law or regulation which is believed prejudicial to the
proper administration of criminal justice.

It is evident that such Provincial/City Committees on Justice perform administrative functions.

Administrative functions are those which involve the regulation and control over the conduct and affairs of
individuals for; their own welfare and the promulgation of rules and regulations to better carry out the
policy of the legislature or such as are devolved upon the administrative agency by the organic law of its
existence (Nasipit Integrated Arrastre and Stevedoring Services Inc., vs. Tapucar, SP-07599-R, 29
September 1978, Blacks Law Dictionary).

Furthermore, under Executive Order No. 326 amending Executive Order No. 856, it is provided that

Section 6. Supervision.The Provincial/City Committees on Justice shall be under the

supervision of the Secretary of justice Quarterly accomplishment reports shall be
submitted to the Office of the Secretary of Justice.

Under the Constitution, the members of the Supreme Court and other courts established by law shag not
be designated to any agency performing quasi- judicial or administrative functions (Section 12, Art. VIII,
Constitution).

Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice,
which discharges a administrative functions, will be in violation of the Constitution, the Court is
constrained to deny his request.

Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig
(39 SCRA 106) ably sets forth:

2. While the doctrine of separation of powers is a relative theory not to be enforced with
pedantic rigor, the practical demands of government precluding its doctrinaire application,
it cannot justify a member of the judiciary being required to assume a position or perform
a duty non-judicial in character. That is implicit in the principle. Otherwise there is a plain
departure from its command. The essence of the trust reposed in him is to decide. Only a
 higher court, as was emphasized by Justice Barredo, can pass on his actuation. He is not
a subordinate of an executive or legislative official, however eminent. It is indispensable
that there be no exception to the rigidity of such a norm if he is, as expected, to be
confined to the task of adjudication. Fidelity to his sworn responsibility no less than the
maintenance of respect for the judiciary can be satisfied with nothing less.

This declaration does not mean that RTC Judges should adopt an attitude of monastic insensibility or
unbecoming indifference to Province/City Committee on Justice. As incumbent RTC Judges, they form
part of the structure of government. Their integrity and performance in the adjudication of cases contribute
to the solidity of such structure. As public officials, they are trustees of an orderly society. Even as non-
members of Provincial/City Committees on Justice, RTC judges should render assistance to said
Committees to help promote the laudable purposes for which they exist, but only when such assistance
may be reasonably incidental to the fulfillment of their judicial duties.

ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is DENIED.

SO ORDERED.

_________

G.R. No. L-23258 July 1, 1967

ROBERTO R. MONROY, petitioner,

vs.
HON. COURT OF APPEALS and FELIPE DEL ROSARIO, respondent.

E. M. Fernando, E. Quisumbing-Fernando and Norberto Quisumbing for petitioner.

Sycip, Salazar, Luna and Associates for respondents.

BENGZON, J.P., J.:

Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when on September 15, 1961, his
certificate of candidacy as representative of the first district of Rizal in the forthcoming elections was filed
with the Commission on Elections. Three days later, or on September 18, 1961, petitioner filed a letter
withdrawing said certificate of candidacy. The Commission on Elections, per resolution, 1 approved the
withdrawal. But on September 21, 1961, respondent Felipe del Rosario, then the vice-mayor of Navotas,
took his oath of office as municipal mayor on the theory that petitioner had forfeited the said office upon
his filing of the certificate of candidacy in question.

Upon these facts, the Court of First Instance of Rizal, held in the suit for injunction instituted by petitioner
against respondents that (a) the former had ceased to be mayor of Navotas, Rizal, after his certificate of
candidacy was filed on September 15, 1961; (b) respondent del Rosario became municipal mayor upon
his having assumed office as such on September 21, 1961; (c) petitioner must reimburse, as actual
damages, the salaries to which respondent was entitled as Mayor from September 21, 1961 up to the
time he can reassume said office; and (d) petitioner must pay respondent P1,000.00 as moral
damages.1wph1.t
This judgment was, on appeal by petitioner to the Court of Appeals, affirmed in toto except for the award
of moral damages which was eliminated. The same Court reaffirmed its stand upon petitioner's filing a
motion to reconsider. Hence, this petition for certiorari to review the ruling of the Court of Appeals.

Petitioner first argues that both the lower court and the Court of Appeals had done what they had no
jurisdiction to do review a resolution of the Commission on Elections. The submission is without merit.

The Constitution empowers the Commission on Elections to

x x x decide, save those involving the right to vote, all administrative questions affecting elections,
including the determination of the number and location of polling places, and the appointment of
election inspectors and of other election officials x x x . 2 (Emphasis supplied)

And the decisions, orders and rulings of the Commission on these administrative questions are
reviewable only by the Supreme Court.3 Since the powers of the Commission are limited to matters
connected with the "conduct of elections," necessarily its adjudicatory or quasi-judicial powers are
likewise limited to controversies connected with the "conduct of elections." This phrase covers all the
administrative process of preparing and operating the election machinery so that the people could
exercise their right to vote at the given time. 4 All questions and controversies that may arise therefrom are
to be resolved exclusively by the Commission, subject to review only by the Supreme Court.

However, in this case there appears to be no decision, order or ruling of the Commission on
any administrative question or controversy. There was no dispute before the Commission. Respondent
never contested the filing of petitioner's certificate of candidacy. Neither has he disputed before that body
the withdrawal thereof. And even if there was a controversy before the Commission, the same did not and
could not possibly have anything to do with the conduct of elections. What the parties are actually
controverting is whether or not petitioner was still the municipal mayor after September 15, 1961. This
purely legal dispute has absolutely no bearing or effect on the conduct of the elections for the seat of
Congressman for the first district of Rizal. The election can go on irrespective of whether petitioner is
considered resigned from his position of municipal mayor or not. The only interest and for that matter,
jurisdiction, of the Commission on Elections in this regard is to know who are the running candidates for
the forthcoming elections, for that affects the conduct of election. So when petitioner withdrew the
certificate announcing his candidacy for Congressman, as far as the Commission could be concerned,
petitioner was no longer interested in running for that seat. The matter of his having forfeited his present
position and the possible legal effect thereon by the withdrawal of his certificate was completely out of the
picture. Hence, that purely legal question properly fell within the cognizance of the courts.

Now the withdrawal of his certificate of candidacy did not restore petitioner to his former position. Sec. 27
of the Rev. Election Code providing that

Any elective provincial, municipal or city official running for an office, other then the one which he
is actually holding, shall be considered resigned from his office from the moment of the filing of
his certificate of candidacy,"

makes the forfeiture automatic and permanently effective upon the filing of the certificate of for another
office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forfeited
forever and nothing save a new election or appointment can restore the ousted official. Thus, as We had
occasion to remark, through Justice J.B.L. Reyes, in Castro v. Gatuslao, 98 Phil, 94, 196:
 x x x The wording of the law plainly indicates that only the date of filing of the certificate of
candidacy should be taken into account. The law does not make the forfeiture dependent upon
future contingencies, unforeseen and unforeseeable since the vacating is expressly made as of
the moment of the filing of the certificate of candidacy x x x . (Emphasis supplied)

Petitioner's contention that the certificate of candidacy was filed without his knowledge and consent and,
hence, the Commission's approval of its withdrawal invalidated such certificate for all legal purposes, is
untenable. It nowhere appears that the Commission's resolution expressly invalidated the certificate. The
withdrawal of a certificate of candidacy does not necessarily render the certificate void ab initio. Once
filed, the permanent legal effects produced thereby remain even if the certificate itself be subsequently
withdrawn. Moreover, both the trial court and the Court of Appeals expressly found as a fact that the
certificate in question was filed with petitioner's knowledge and consent. And since the nature of the
remedy taken by petitioner before Us would allow a discussion of purely legal questions only, such fact is
deemed conceded.5

Petitioner would next maintain that respondent Court of Appeals likewise erred in affirming a lower court
judgment requiring petitioner to pay respondent Del Rosario by way of actual damages the salaries he
was allegedly entitled to receive from September 21, 1961, to the date of petitioner's vacation of his office
as mayor. In support of this he relies solely upon Rodriguez v. Tan, 91 Phil. 724, holding that a senator
who had been proclaimed and had assumed office but was later on ousted in an election protest, is a de
facto officer during the time he held the office of senator, and can retain the emoluments received even as
against the successful protestant. Petitioner's factual premise is the appellate court's finding that he was
a de facto officer when he continued occupying the office of mayor after September 15, 1961.

However, We agree with the Court of Appeals that the Rodriguez case is not applicable here for absence
of factual and legal similarities. The Rodriguez case involved a senator who had been proclaimed as duly
elected, assumed the office and was subsequently ousted as a result of an election contest. These
peculiar facts called for the application of an established precedent in this jurisdiction that the candidate
duly proclaimed must assume office notwithstanding a protest filed against him and can retain the
compensation paid during his incumbency. But the case at bar does not involve a proclaimed elective
official who will be ousted because of an election contest. The present case for injunction and quo
warranto involves the forfeiture of the office of municipal mayor by the incumbent occupant thereof and
the claim to that office by the vice-mayor because of the operation of Sec. 27 of the Rev. Election Code.
The established precedent invoked in the Rodriguez case can not therefore be applied in this case.

It is the general rule then, i.e., "that the rightful incumbent of a public office may recover from an officer de
facto the salary received by the latter during the time of his wrongful tenure, even though he entered into
the office in good faith and under color of title" 6 that applies in the present case. The resulting hardship
occasioned by the operation of this rule to the de facto officer who did actual work is recognized; but it is
far more cogently acknowledged that the de facto doctrine has been formulated, not for the protection of
the de facto officer principally, but rather for the protection of the public and individuals who get involved
in the official acts of persons discharging the duties of an office without being lawful officers. 7 The
question of compensation involves different principles and concepts however. Here, it is possession of
title, not of the office, that is decisive. A de facto officer, not having good title, takes the salaries at his risk
and must therefore account to the de jure officer for whatever amount of salary he received during the
period of his wrongful retention of the public office.8
Wherefore, finding no error in the judgment appealed from, the same is, as it is hereby, affirmed in toto.
Costs against petitioner. So ordered.

_______

G.R. No. 110544 October 17, 1995

REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros Oriental, HERMINIGILDO

FABURADA, (former Vice-Mayor), SANTOS A. VILLANUEVA, Incumbent Member of the
Sangguniang Bayan, MANUEL LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A.
VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, and FORMER MEMBERS OF
THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS ORIENTAL, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA
ESTRELLANES, respondents.

KAPUNAN, J.:

Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the Revised
Rules of Court to set aside the resolution of the Sandiganbayan dated 17 February 1992 and its orders
dated 19 August 1992 and 13 May 1993 in Criminal Case No. 16936 entitled "People of the Philippines
versus Reynaldo Tuanda, et al." denying petitioners' motion for suspension of their arraignment.

The present controversy arose from the following antecedents:

On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were designated as
industrial labor sectoral representative and agricultural labor sectoral representative respectively, for the
Sangguniang Bayan of Jimalalud, Province of Negros Oriental by then Secretary Luis T. Santos of the
Department of Local Government. Private respondents Binaohan and Estrellanes took their oath of office
on 16 February 1989 and 17 February 1989, respectively.

Subsequently, petitioners filed an undated petition with the Office of the President for review and recall of
said designations. The latter, however, in a letter dated 20 March 1989, denied the petition and enjoined
Mayor Reynaldo Tuanda to recognize private respondents as sectoral representatives.

On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial Court of Negros
Oriental, Branch 35, docketed as Special Civil Action No. 9661, for recognition as members of the
Sangguniang Bayan. It was dismissed on 23 July 1991.

Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of Dumaguete City to
declare null and void the designations of private respondents as sectoral representatives, docketed as
Civil Case No. 9955 entitled "Reynaldo Tuanda, et al. versus Secretary of the Department of Local
Government, et al."

On 21 July 1991, an information was filed before the Sandiganbayan, docketed as Criminal Case No.
16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." charging petitioners thus:
 INFORMATION

The undersigned Special Prosecution Officer of the Special Prosecutor, hereby accuses
REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P.
AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO, and
SANTOS A. VILLANUEVA of Violation of Section 3(e) of R.A. No. 3019, as amended,
committed as follows:

That during the period from February 1989 to February 1991 and
subsequent thereto, in the Municipality of Jimalalud, Negros Oriental,
and within the jurisdiction of this Honorable Court, accused, all public
officers, Mayor REYNALDO V. TUANDA, Vice-Mayor HERMENEGILDO
G. FABURADA, Sangguniang Members MANUEL LIM, NICANOR P.
AGOSTO, ERENIETA K. MENDOZA, MAXIMO A. VIERNES, HACUBINA
V. SERILLO, ILUMINADO D. ESTRELLANES and SANTOS A.
VILLANUEVA while in the performance of their official functions and
taking advantage of their public positions, with evident bad faith, manifest
partiality, and conspiring and confederating with each other did, then and
there, wilfully and unlawfully cause undue injury to Sectoral Members
Bartolome M. Binaohan and Delia T. Estrellanes by refusing to pay
despite demand the amount of NINETY FIVE THOUSAND THREE
HUNDRED FIFTY PESOS (P95,350.00) and ONE HUNDRED EIGHT
THOUSAND NINE HUNDRED PESOS (P108,900.00) representing
respectively their per diems, salaries and other privileges and benefits,
and such undue injury continuing to the present to the prejudice and
damage of Bartolome Binaohan and Delia Estrellanes.

CONTRARY TO LAW. 1

On 9 September 1991, petitioners filed a motion with the Sandiganbayan for suspension of the
proceedings in Criminal Case No. 16936 on the ground that a prejudicial question exists in Civil Case No.
9955 pending before the Regional Trial Court of Dumaguete City. 2

On 16 January 1992, the Regional Trial Court rendered a decision declaring null and void ab initio the
designations issued by the Department of Local Government to the private respondents as sectoral
representatives for having been done in violation of Section 146 (2) of B.P. Blg. 337, otherwise known as
the Local Government Code. 3

The trial court expounded thus:

The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al., G.R.
No. 84663, along with 7 companion cases of similar import, (G.R. Nos. 05012, 87601,
87602, 87792, 87935, 88072, and 90205) all promulgated on August 24, 1990, ruled that:

B.P. Blg. 337 explicitly required that before the President (or the
Secretary of the Department of Local Government) may appoint
members of the local legislative bodies to represent the Industrial and
Agricultural Labor Sectors, there must be a determination to be made by
 the Sanggunian itself that the said sectors are of sufficient number in the
city or municipality to warrant representation after consultation with
associations and persons belonging to the sector concerned.

The Supreme Court further ruled

For that matter, the Implementing Rules and Regulations of the Local
Government Code even prescribe the time and manner by which such
determination is to be conducted by the Sanggunian.

Consequently, in cases where the Sanggunian concerned has not yet

determined that the Industrial and Agricultural Labor Sectors in their
particular city or municipality are of sufficient number to warrant
representation, there will absolutely be no basis for the
designation/appointments.

In the process of such inquiry as to the sufficiency in number of the sector concerned to
warrant representation, the Sanggunian is enjoined by law (B.P. Blg. 337) to consult with
associations and persons belonging to the sector concerned. Consultation with the sector
concerned is made a pre-requisite. This is so considering that those who belong to the
said sector are the ones primarily interested in being represented in the Sanggunian. In
the same aforecited case, the Supreme Court considers such prior determination by the
Sanggunian itself (not by any other person or body) as a condition sine qua non to a valid
appointment or designation.

Since in the present case, there was total absence of the required prior determination by
the Sangguniang Bayan of Jimalalud, this Court cannot help but declare the designations
of private defendants as sectoral representatives null and void.

This verdict is not without precedence. In several similar cases, the Supreme Court
invariably nullified the designations where the requirements of Sec. 146 (2), B.P. Blg. 337
were not complied with. Just to cite one case, the Supreme Court ruled:

There is no certification from the Sangguniang Bayan of Valenzuela that

the sectors concerned are of sufficient number to warrant representation
and there was no consultation whatsoever with the associations and
persons belonging to the Industrial and Agricultural Labor Sectors.
Therefore, the appointment of private respondents Romeo F. Bularan
and Rafael Cortez are null and void (Romeo Llanado, et al. v. Hon. Luis
Santos, et al., G.R. No. 86394, August 24, 1990). 4

Private respondents appealed the aforestated decision to the Court of Appeals, docketed as CA-G.R. CV
No. 36769, where the same is currently pending resolution.

Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the motion for
suspension of proceedings filed by petitioners. Said respondent Sandiganbayan:
 Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros
Oriental, it appears, nevertheless, that the private complainants have been rendering
services on the basis of their respective appointments as sectoral members of the
Sangguniang Bayan of the Municipality of Jimalalud, Negros Oriental; and that their said
appointments enjoy the presumption of regularity. Having rendered such services, the
private complainants are entitled to the salaries attached to their office. Even
assuming arguendo that the said Regional Trial Court shall later decide that the said
appointments of the private complainants are null and void, still the private complainants
are entitled to their salaries and compensation for service they have actually rendered,
for the reason that before such judicial declaration of nullity, the private complainants are
considered at least de facto public officers acting as such on the basis of apparently valid
appointments issued by competent authorities. In other words, regardless of the decision
that may be rendered in Civil Case
No. 9955, the private complainants are entitled to their withheld salaries for the services
they have actually rendered as sectoral representatives of the said Sangguniang Bayan.
Hence, the decision that may be rendered by the Regional Trial Court in Civil Case No.
9955 would not be determinative of the innocence or guilt of the accused.

WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of

Prejudicial Question filed by the accused through counsel, is hereby DENIED for lack of
merit.

SO ORDERED. 5

Petitioners filed a motion for reconsideration of the aforementioned resolution in view of the decision
promulgated by the trial court nullifying the appointments of private respondents but it was, likewise,
denied in an order issued by respondent Sandiganbayan on 19 August 1992 on the justification that the
grounds stated in the said motion were a mere rehash of petitioners' original motion to hold the case in
abeyance. 6 The dispositive portion of its order reads as follows:

WHEREFORE, in view of the foregoing, the arraignment of the accused which was
scheduled today is cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada, Nicanor
P. Agosto, Erenieta K. Mendoza, Hacubina V. Serillo and Iluminado Estrellanes are,
however, hereby ordered to show cause in writing within ten (10) days from service
hereof why they should not be cited for contempt of court for their failure to appear in
court today for arraignment.

In case of an adverse resolution on the motion to quash which is to be filed by the

counsel for the defense, set this case for arraignment, pre-trial and trial on January 4 & 5,
1993, on all dates the trial to start at 8:30 o'clock in the morning.

SO ORDERED. 7

On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all incidents
pending the issuance of an extended resolution. 8
No such resolution, however, was issued and in its assailed order dated 13 May 1992, respondent
Sandiganbayan set the arraignment of petitioners on 30 June 1993. The dispositive portion of the order
reads:

WHEREFORE, considering the absence of the accused from the scheduled hearing
today which We deem to be excusable, reset this case for arraignment on June 30, 1993
and for trial on the merits on June 30 and July 1 and 2, 1993, on all dates the trial to start
at 8:30 o'clock in the morning.

Give proper notice to the accused and principal counsel, Atty. Alfonso Briones.
Considering that the accused come all the way from Himalalud, Negros Oriental, no
postponement will be allowed.

SO ORDERED. 9

Hence, this special civil action for certiorari and prohibition where petitioners attribute to respondent
Sandiganbayan the following errors:

A. The Respondent Court committed grave abuse of discretion in denying petitioners'

motions for the suspension of the proceedings in Criminal Case No. 16936 in spite of the
pendency of a prejudicial issue before the Court of Appeals in CA-G.R. CV No. 36769;

B. The Respondent Court acted without or in excess of jurisdiction in refusing to suspend

the proceedings that would entail a retrial and rehearing by it of the basic issue
involved, i.e., the validity of the appointments of private respondents and their entitlement
to compensation which is already pending resolution by the Court of Appeals in C.A. G.R.
CV No. 36769; and

C. The Respondent Court committed grave abuse of discretion and/or acted without or in
excess of jurisdiction in effectively allowing petitioners to be prosecuted under two
alternative theories that private respondents are de jure and/or de facto officers in
violation of petitioners' right to due process. 10

In sum, the only issue in the case at bench is whether or not the legality or validity of private respondents'
designation as sectoral representatives which is pending resolution in CA-G.R. No. 36769 is a prejudicial
question justifying suspension of the proceedings in the criminal case against petitioners.

A prejudicial question is one that must be decided before any criminal prosecution may be instituted or
before it may proceed (see Art. 36, Civil Code) because a decision on that point is vital to the eventual
judgment in the criminal case. Thus, the resolution of the prejudicial question is a logical antecedent of
the issues involved in said criminal case. 11

A prejudicial question is defined as that which arises in a case the resolution of which is a logical
antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The
prejudicial question must be determinative of the case before the court but the jurisdiction to try and
resolve the question must be lodged in another court or tribunal. 12 It is a question based on a fact distinct
and separate from "the crime but so intimately connected with it that it determines the guilt or innocence
of the accused, and for it to suspend the criminal action, it must appear not only that said case involves
facts intimately related to those upon which the criminal prosecution would be based but also that in the
resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would
necessarily be determined. It comes into play generally in a situation where a civil action and a criminal
action are both pending and there exists in the former an issue which must be preemptively resolved
before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved
would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case." 13

The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. 14 It has two
essential elements:

(a) the civil action involves an issue similar or intimately related to the issue raised in the
criminal action; and

(b) the resolution of such issue determines whether or not the criminal action may
proceed. 15

Applying the foregoing principles to the case at bench, we find that the issue in the civil case, CA-G.R. CV
No. 36769, constitutes a valid prejudicial question to warrant suspension of the arraignment and further
proceedings in the criminal case against petitioners.

All the elements of a prejudicial question are clearly and unmistakably present in this case. There is no
doubt that the facts and issues involved in the civil action (No. 36769) and the criminal case (No. 16936)
are closely related. The filing of the criminal case was premised on petitioners' alleged partiality and
evident bad faith in not paying private respondents' salaries and per diems as sectoral representatives,
while the civil action was instituted precisely to resolve whether or not the designations of private
respondents as sectoral representatives were made in accordance with law.

More importantly, ,the resolution of the civil case will certainly determine if there will still be any reason to
proceed with the criminal action.

Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act (RA 3019, sec, 3[e]) due
to their refusal, allegedly in bad faith and with manifest partiality, to pay private respondents' salaries as
sectoral representatives. This refusal, however, was anchored on petitioners' assertion that said
designations were made in violation of the Local Government Code (B.P. Blg. 337) and thus, were null
and void. Therefore, should the Court of Appeals uphold the trial court's decision declaring null and void
private respondents' designations as sectoral representatives for failure to comply with the provisions of
the Local Government Code (B.P. Blg. 337, sec. 146[2]), the charges against petitioners would no longer,
so to speak, have a leg to stand on. Petitioners cannot be accused of bad faith and partiality there being
in the first place no obligation on their part to pay private respondents' claims. Private respondents do not
have any legal right to demand salaries, per diems and other benefits. In other words, the Court of
Appeals' resolution of the issues raised in the civil action will ultimately determine whether or not there is
basis to proceed with the criminal case.

Private respondents insist that even if their designations are nullified, they are entitled to compensation
for actual services rendered. 16 We disagree. As found by the trial court and as borne out by the records,
from the start, private respondents' designations as sectoral representatives have been challenged by
petitioners. They began with a petition filed with the Office of the President copies of which were received
by private respondents on 26 February 1989, barely eight (8) days after they took their oath of
office. 17 Hence, private respondents' claim that they have actually rendered services as sectoral
representatives has not been established.

Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that private
respondents' designations are finally declared invalid, they may still be considered de facto public officers
entitled to compensation for services actually rendered.

The conditions and elements of de facto officership are the following:

1) There must be a de jure office;

2) There must be color of right or general acquiescence by the public; and

3) There must be actual physical possession of the office in good faith. 18

One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de
facto officer where there is no de jure office, although there may be a de facto officer in a de jure office. 19

WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August 1992 and 13 May
1993 of respondent Sandiganbayan in Criminal Case No. 16936 are hereby SET ASIDE. Respondent
Sandiganbayan is enjoined from proceeding with the arraignment and trial of petitioners in Criminal Case
No. 16936 pending final resolution of CA-G.R. CV No. 36769.

SO ORDERED.

______

G.R. No. 129616 April 17, 2002

THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO, petitioners,
vs.
JULIETA MONSERATE, respondent.

SANDOVAL-GUTIERREZ, J.:

This petition for review on certiorari1 seeks to set aside the Decision dated June 20, 1997 of the Court of
Appeals in CA-G.R. No. 39670,2 declaring null and void the Resolution No. 952043 dated March 21, 1995
and Resolution No. 956640 dated October 24, 1995 of the Civil Service Commission (CSC), and ordering
the reinstatement of Julieta G. Monserate as Division Manager II of the Resources Management Division,
Ports Management Office, Philippine Ports Authority (PPA), Iloilo City.

The facts are:

Julieta Monserate, respondent, started her government service in 1977 as Bookkeeper II in the
Port Management Office, PPA, Iloilo City. Barely a year later, she was promoted to the position of
Cashier II and then as Finance Officer (SG-16) in 1980. 3

In the early part of 1988, when the PPA underwent a reorganization, respondent applied for the
permanent position of Manager II (SG-19) of the Resource Management Division, same office. The
Comparative Data Sheet4accomplished by the PPA Reorganization Task Force shows the ranking of the
six (6) aspirants to the said position, thus:

"COMPARATIVE DATA SHEET

OFFICE: PMO ILOILO

DIVISION: RES. MANAGEMENT DIVISION

POSITION: DIVISION MANAGER

REQUIRED CS ELIG.: CS PROF / RA 1080

CANDIDATES ELIGIBILITY xxx TOTAL

1. MONSERATE, JULIETA CS Prof. xxx 79.5

2. ANINO, RAMON 1st grade xxx 70

3. TEODOSIO, APRIL PD 907 (CPA) xxx 67

4. MORTOLA, DARIO CS Prof. xxx 67

5. ESPINOSA, AMALIK Bar xxx 63.5

6. PERFECTO, BASCOS RA 1080 xxx 59.5"

On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA, appointed 5 respondent to
the position of Manager II (Resource Management Division). On even date, respondent assumed office
and discharged the functions thereof. On July 8, 1988, the CSC, through Guillermo R. Silva (Assistant
Director of the Civil Service Field Office-PPA) approved her appointment.

Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to respondent per the
Comparative Data Sheet earlier quoted, filed an appeal/petition with the PPA Appeals Board, protesting
against respondent's appointment. The PPA Appeals Board, in a Resolution 6 dated August 11, 1988,
sustained the protest and rendered ineffective respondent's appointment based on "(1) CSC MC No. 5, s.
1988, Par. 3;7 (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B;8 and (3) Civil Service Eligibility." These
grounds were not explained or discussed in the Resolution, the dispositive portion of which reads:

"WHEREFORE, premises considered, this Board upholds the appointment of Ramon A. Anino as
Resources Management Division Manager of the Port Management Office of Iloilo."

On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-88 9 (entitled
"Creation of the PPA Manager's Pool"), dated September 28, 1988, issued by the new PPA General
Manager, Mr. Rogelio A. Dayan. That Special Order excluded the name of respondent from the pool-list
and placed instead the name of petitioner as Manager II, Resource Management Division. In effect, the
Special Order implemented the August 11, 1988 Resolution of the PPA Appeals Board. 1wphi1.nt

Aggrieved, respondent filed with the PPA General Manager an appeal/request for clarification dated
November 2, 1988.10 She questioned her replacement under PPA Special Order No. 479-88, claiming that
the proceedings before the PPA Appeals Board were irregular because (1) she was not notified of the
hearing before it; (2) she was not furnished a copy of the August 11, 1988 PPA Appeals Board Resolution
or a copy of the protest filed by petitioner Anino;11 (3) she was not informed of the reasons behind her
replacement; and (4) their Port Manager (in Iloilo City), who was then an official member of the Board,
was not included in the said proceedings.

On November 8, 1988, pending resolution of her appeal/request for clarification, respondent received a
copy of PPA Special Order No. 492-8812 dated October 21, 1988, also issued by General Manager
Dayan. This PPA Order officially reassigned her to the position of Administrative Officer (SG-15) which
was petitioner Anino's former position and was lower than her previous position as Finance Officer (SG
16) before she was appointed as Division Manager.

Apparently at a loss with the turn of events, coupled by the inaction of PPA General Manager Dayan on
her earlier appeal/request for clarification, respondent filed on November 25, 1988 a "precautionary
appeal"13 with the CSC. She manifested that as of said date (November 25), she has not yet been
furnished a certified copy of the PPA Appeals Board Resolution.

On January 2, 1989, respondent received a copy of her new appointment as Administrative Officer dated
October 1, 1988.14 It was also during this time when she learned that PPA General Manager Dayan had
just issued petitioner's appointment dated October 21, 1988 as Manager II in the Resource Management
Division effective February 1, 1988.

On January 16, 1989, respondent filed with the CSC an appeal formally protesting against petitioner
Anino's appointment and at the same time questioning the propriety of the August 11, 1988 Resolution of
the PPA Appeals Board. This appeal remained pending with the CSC for more than six (6) years despite
respondent's requests for early resolution. In the meantime, she assumed the position of Administrative
Officer.

Eventually, the CSC, in its Resolution No. 95-204315 dated March 21, 1995, dismissed respondent's
appeal, thus:
 "It is well-established rule that an appointment, although approved by this Commission, does not
become final until the protest filed against it is decided by the agency or by the Commission.
Although Monserate had already assumed the position of RMD Manager II, the appointing
authority may still withdraw the same if a protest is seasonably filed. This is covered by Section
19, Rule VI of the Omnibus Rules implementing EO 292 x x x.

"Monserate's claim that she is more qualified than Anino is not relevant to the issue before this
Commission. In cases of protest filed or appealed to the Commission, the main question to be
resolved is whether or not the appointee meets the qualification standard. x x x. The Commission
will not disturb the choice of the appointing authority as long as the appointee meets the
qualification prescribed for the position in question."

Respondent filed a motion for reconsideration but the same was denied by the CSC in its Resolution No.
95-6640 dated October 24, 1995.

In due time, respondent filed with the Court of Appeals a petition for review impleading as respondents
the PPA General Manager and petitioner Anino.

On June 20, 1997, the Court of Appeals rendered a Decision 16 nullifying the twin Resolutions of the CSC.
It ruled that the August 11, 1988 Resolution of the PPA Appeals Board was not supported by evidence
and that the same was irregularly issued due to lack of proper notice to respondent with respect to the
Board's proceedings. It concluded that her reassignment from the position of Manager II, Resource
Management Division (SG-19), to the position of Administrative Officer (SG-15) was a demotion violative
of her constitutional right to security of tenure and due process. The dispositive portion of the Court of
Appeals' Decision reads:

"THE FOREGOING CONSIDERED, judgment is hereby rendered declaring as null and void
Resolution Nos. 952043 and 95640 (should be 956640) dated March 21 and October 21, 1988
(should be October 24, 1995), of the Civil service Commission; and directing the reinstatement of
the petitioner to the position of Resource Management Division Manager II.

"SO ORDERED."

Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997 the present petition.
On November 30, 1997, petitioner Anino retired from the government service. 17

Petitioners ascribe to the Court of Appeals the following errors:

I THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT RESPONDENT

MONSERATE WAS DEMOTED FROM RESOURCES MANAGEMENT DIVISION MANAGER TO
ADMINISTRATIVE OFFICER, THUS VIOLATING HER RIGHT TO SECURITY OF TENURE.

II THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF WITH THE WELL-
NIGH RULE THAT RESPONDENT MONSERATE'S APPOINTMENT AS RESOURCE
MANAGEMENT DIVISION MANAGER, ALTHOUGH APPROVED BY CSC, DOES NOT
BECOME FINAL UNTIL THE PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN
HER FAVOR BY THE AGENCY OR THE CSC.

III THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF JUDGMENT IN

IGNORING THAT IN CASES OF PROTEST FILED OR APPEALED TO THE CSC, THE MAIN
QUESTION TO BE RESOLVED IS WHETHER OR NOT THE APPOINTEE MEETS THE
QUALIFICATION STANDARD.18
The pivotal issue in this case is whether or not there was due process when respondent was replaced by
petitioner Anino from her position as Manager II, Resource Management Division, and demoted as
Administrative Officer.

Petitioners vehemently aver that respondent was never demoted since demotion, being in the nature of
administrative penalty, presupposes a conviction in an administrative case. Here, respondent was not
charged of any administrative case. Rather, she was displaced from her position as an "aftermath of the
PPA reorganization, authorized by law, the implementation of which having been carried out with utmost
good faith."

Furthermore, the said displacement was just the necessary effect of the August 11, 1988 Resolution of
the PPA Appeals Board which sustained petitioner Anino's timely protest against respondent's
appointment. Petitioners theorize that the appointment of respondent as Resource Management Division
Manager did not become final until the protest filed against her was favorably decided in her favor by the
CSC. In support of this contention, they cited Section 19, Rule VI of the Omnibus Rules Implementing
Book V of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), which
provides inter alia:

"SEC 19. An appointment, though contested, shall take effect immediately upon its issuance if the
appointee assumes the duties of the position and the appointee is entitled to receive the salary
attached to the position. However, the appointment, together with the decision of the department
head, shall be submitted to the Commission for appropriate action within 30 days from the date of
its issuance, otherwise the appointment becomes ineffective thereafter. Likewise, such
appointment shall become ineffective in case the protest is finally resolved against the
protestee, in which case, he shall be reverted to his former position."

Petitioners also contend that the head of an agency, being the appointing authority, is the one most
knowledgeable to decide who can best perform the functions of the office. The appointing authority has a
wide latitude of choice subject only to the condition that the appointee should possess the qualifications
required by law. Consequently, "the CSC acted rightly when it did not interfere in the exercise of discretion
by the PPA appointing authority, there being no evidence of grave abuse of discretion thereof or violation
of the Civil Service Law and Rules."

The petition is unmeritorious.

In the first place, the PPA reorganization in 1988 has nothing to do with respondent's demotion from the
contested position of Manager II, Resource Management Office (SG-19), to the lower position of
Administrative Officer (SG-15). Antithetically, it was precisely because of the said reorganization that
respondent applied to the higher position of Division Manager II. In fact, the Comparative Data Sheet
accomplished by the PPA Reorganization Task Force itself shows that respondent ranked No. 1, while
petitioner Anino ranked No. 2, from among the six (6) contenders to the said post. Respondent was
eventually issued a permanent appointment as such Division Manager on February 1, 1988 by then PPA
General Maximo Dumlao, Jr., during which time she actually assumed office and discharged its functions.
This appointment was later approved on July 8, 1988 by the CSC, through Assistant Director Guillermo R.
Silva of the Civil Service Field Office-PPA.

Clearly, it was only after the reorganization and upon the issuance of the August 11, 1988 Resolution of
the PPA Appeals Board when respondent was demoted to the lower position of Administrative Officer.
This is further shown by the following orders and appointments subsequently issued by then PPA
General Manager Rogelio Dayan:

1. PPA Special Order No. 479-88 dated September 28, 1988 which excluded respondent
Monserate from the PPA Managers' pool-list;
 2. Appointment of respondent, dated October 1, 1988, to the position of Administrative Officer;

3. PPA Special Order No. 492-88 dated October 21, 1988 which officially reassigned respondent
to the position of Administrative Officer; and

4. Appointment of petitioner Anino, dated October 21, 1988, to the position of Manager II,
Resource Management Division, effective February 1, 1988.

Therefore, contrary to petitioners' claim, respondent was demoted, not by reason of the PPA
reorganization in 1988, but due to the PPA Appeals Board Resolution dated August 11, 1988 sustaining
petitioner Anino's protest against respondent's appointment.

Unfortunately for petitioners, this Court cannot accord validity to the August 11, 1988 Resolution of the
PPA Appeals Board which "upholds the appointment of Ramon A. Anino as Resource Management
Division Manager." But how can it uphold his appointment when he was not yet appointed then? It bears
stressing that he was appointed on a much later date - October 21, 1988, or more than two (2) months
after August 11, 1998 when the PPA Appeals Board Resolution was issued. Stated differently, the
PPA Appeals Board could not uphold an appointment which was not yet existing.

Equally questionable are the grounds for respondent's demotion stated in the August 11, 1998 Resolution:
"(1) CSC MC No. 5, s. 1988, Par. 3; (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; and (3) Civil
Service Eligibility." These grounds are incomprehensible for lack of discussion or explanation by the
Board to enable respondent to know the reason for her demotion.

We uphold the Court of Appeals' finding that the August 11, 1998 PPA Appeals Board Resolution was void
for lack of evidence and proper notice to respondent. As aptly held by the Appellate Court:

"In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding the
appointment of the private respondent (Ramon Anino) as Division Manager, the grounds against
petitioner's (Julieta Monserate) appointment were: a) the CSC MC No. 5, s. 1988, Par 3; b) the
CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par. B; and c) Civil service eligibility.

"x x x

"To us, the August 11, 1988 Resolution by the PPA Appeals Board was not supported by
evidence. Of the CSC MC No. 5, the petitioner had no pending administrative or criminal case at
the time of her appointment as Manager. x x x.

"With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review, evaluation
and recommendation of her appointment as Manager II, passed several committees created by
the PPA. x x x. Moreover, she had a 1.9 average performance rating compared to the private
respondent who only got 2.03. x x x.

"On eligibility, she has a Career Service Professional eligibility while the private respondent only
has a First Grade Civil Service Eligibility.

"She added that she was not aware of any proceeding on her demotion as a Division Manager.
As a matter of fact, it was only upon her iniative sometime during the latter part of November,
1988 that she was able to obtain a copy of the August 11, 1988 Resolution of the Appeals Board.
The resolution sustained the private respondent's appointment as Division Manager even if on
August 11, 1988, he was not yet extended any appointment. As a matter of fact, he was
appointed only on October 1, 1988 (should be October 21, 1988).
 "Furthermore, she said that the resolution of the PPA Appeals Board appears irregular, if not null
and void. She was never notified of any proceeding; she was not furnished either a copy of the
resolution. What she received instead was a Special Order dated September 29, 1988 already
ordering her demotion. She was not at all given the opportunity of defending herself before the
Appeals Board.

"x x x.

"In the case now before us, the petitioner did not receive or was not given a copy of the August
11, 1988 Resolution of the Appeals Board. She did not even know that she was demoted until
after she received a copy of the of the Special Order No. 479-88." 19

From all indications, it is indubitable that substantial and procedural irregularities attended respondent's
demotion from the position of Manager II, Resource Management Division, to the lower position of
Administrative Officer. Indeed, her demotion, tantamount to a revocation of her appointment as Manager
II, is a patent violation of her constitutional rights to security of tenure and due process. In Aquino vs. Civil
Service Commission,20 this Court emphasized that "once an appointment is issued and the moment the
appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not
merely equitable, right (to the position) which is protected not only by statute, but also by the constitution,
and cannot be taken away from him either by revocation of the appointment, or by removal, except for
cause, and with previous notice and hearing."

Concededly, the appointing authority has a wide latitude of discretion in the selection and appointment of
qualified persons to vacant positions in the civil service.21 However, the moment the discretionary power
of appointment is exercised and the appointee assumed the duties and functions of the position, such
appointment cannot anymore be revoked by the appointing authority and appoint another in his stead,
except for cause. Here, no iota of evidence was ever established to justify the revocation of respondent's
appointment by demoting her. Respondent's security of tenure guaranteed under the 1987 Constitution
[Article IX-B, Section 2, par. (3)] should not be placed at the mercy of abusive exercise of the appointing
power.22

Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post as Manager II in
the Resource Management Division, it merely restored her appointment to the said position to which her
right to security of tenure had already attached. To be sure, her position as Manager II never became
vacant since her demotion was void. In this jurisdiction, "an appointment to a non-vacant position in the
civil service is null and void ab initio."23

We now delve on the backwages in favor of respondent.

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

In this respect, while petitioner Anino's appointment to the contested position is void, as earlier discussed,
he is nonetheless considered a de facto officer during the period of his incumbency.24 A de facto officer is
one who is in possession of an office and who openly exercises its functions under color of an
appointment or election, even though such appointment or election may be irregular. 25 In Monroy vs.
Court of Appeals,26 this Court ruled that a rightful incumbent of a public office may recover from a de
facto officer the salary received by the latter during the time of his wrongful tenure, even though he
(the de facto officer) occupied the office in good faith and under color of title. A de facto officer, not having
a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever
salary he received during the period of his wrongful tenure. In the later case of Civil Liberties Union vs.
Executive Secretary,27 this Court allowed a de facto officer to receive emoluments for actual services
rendered but only when there is no de jure officer, thus:

"x x x in cases where there is no de jure officer, a de facto officer who, in good faith, has had
possession of the office and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in appropriate action recover the salary, fees and other
compensations attached to the office."

In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency,
is not entitled to the emoluments attached to the office, even if he occupied the office in good faith. This
rule, however, cannot be applied squarely on the present case in view of its peculiar circumstances.
Respondent had assumed under protest the position of Administrative Officer sometime in the latter part
of 1988, which position she currently holds. Since then, she has been receiving the emoluments, salary
and other compensation attached to such office. While her assumption to said lower position and her
acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to
her rightful office (Division Manager), she cannot recover full backwages for the period when she was
unlawfully deprived thereof. She is entitled only to backpay differentials for the period starting from her
assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as
Division Manager. Such backpay differentials pertain to the difference between the salary rates for the
positions of Manager II and Administrative Officer. The same must be paid by petitioner Anino
corresponding from the time he wrongfully assumed the contested position up to the time of his retirement
on November 30, 1997.1wphi1.nt

WHEREFORE, the petition is DENIED. The challenged Decision of the Court of Appeals dated June 20,
1997 is AFFIRMED with MODIFICATION in the sense that petitioner Ramon A. Anino is ordered to pay
respondent Julieta Monserate backpay differentials pertaining to the period from the time he wrongfully
assumed the contested position of Manager II up to his retirement on November 30, 1997.

SO ORDERED.

____

MELANIO D. SAMPAYAN, DIEGO L. TURLA, JR., and LEONARDO G.

TIOZON,
Petitioners,

G. R. No. 103903

September 11, 1992

-versus-

RAUL A. DAZA, HON. CAMILO SABIO, as Secretary of the

House of Representatives, MR. JOSE MARIA TUAO, as Officer-in-

Charge, General Services Division of the House of Representatives, MRS.
ROSALINDA G. MEDINA,
as Chief Accountant of the House of Representativesand the HON.
COMMISSION ON AUDIT,
 Respondents.

RESOLUTION

ROMERO, J.:

On February 18, 1992, petitioners, residents of the second Congressional District of Northern Samar, filed
the instant Petition for Prohibition seeking to disqualify respondent Raul Daza, then incumbent
congressman of the same congressional district, from continuing to exercise the functions of his office, on
the ground that the latter is a greencard holder and a lawful permanent resident of the United States since
October 16, 1974.
Petitioners allege that Mr. Daza has not, by any act or declaration, renounced his status as permanent
resident, thereby violating Section 68 of Batas Pambansa Bilang 881 [Omnibus Election Code] and
Section 18, Article XI of the 1987 Constitution.cralaw
On February 25, 1992, We required respondents to comment. On March 13, 1992, respondents, through
the Solicitor General, filed a motion for extension of time to file their comment for a period of thirty days or
until April 12, 1992. Reacting to the said motion, petitioners on March 30, 1992, manifested their
opposition to the 30-day extension of time stating that such extension was excessive and prayed that
respondent instead be granted only 10 days to file their comment. On May 5, 1992, the Court noted the
manifestation and opposition.cralaw
On April 7, 1992, petitioners manifested before us that on April 2, 1992, they filed a petition before the
COMELEC to disqualify respondent Daza from running in the recent May 11, 1992 elections on the basis
of Section 68 of the Omnibus Election Code (SPC 92-084) and that the instant petition is concerned with
the unlawful assumption of office by respondent Daza from June 30, 1987 until June 30, 1992. [1]
On April 10, 1992, respondent Congressman Daza filed his comment denying the fact that he is a
permanent resident of the United States; that although he was accorded a permanent residency status on
October 8, 1980 an evidenced by a letter order of the District Director, US Immigration and Naturalization
Service, Los Angeles, U.S.A., [2] he had long waived his status when he returned to the Philippines on
August 12, 1985. [3]
On April 13, 1992, public respondent Camilo Sabio, Secretary General of the House of Representatives,
Mr. Jose Mari Tuao, an OIC of the General Services Division, Mrs. Rosalinda G. Medina, as Chief
Accountant of the House of Representatives and Commission on Audit, filed their comment. They contend
that if indeed Congressman Daza is a greencard holder and a permanent resident of the United States of
America, then he should be removed from his position as Congressman. However, they opined that only
Congressman Daza can best explain his true and correct status as a greencard holder. Until he files his
comment to the petition, petitioners' prayer for temporary restraining order and writ of preliminary
injunction should not be granted. [4]
Eight [8] days later, respondent Daza, reacting to the petition before the COMELEC [SPC 92-084] and
hypothesizing that the case before the COMELEC would become moot should this Court find that his
permanent resident status ceased when he was granted a US non-immigrant visa, asked this Court to
direct the COMELEC to dismiss SPC No. 92-084. [5]
On May 5, 1992, petitioners filed their reply. On May 21, 1992, this Court gave due course to the petition
and required the parties to file their respective memoranda.cralaw
The central issue to be resolved in this case is whether or not respondent Daza should be disqualified as
a member of the House of Representatives for violation of Section 68 of the Omnibus Election Code.
Petitioners insist that Congressman Daza should be disqualified from exercising the functions of his office
being a permanent resident alien of the United States at the time when he filed his certificate of candidacy
for the May 11, 1987 Elections. To buttress their contention, petitioners cite the recent case of Caasi v.
Court of Appeals. [6]
In support of their charge that respondent Daza is a greencard holder, petitioners presented to Us a letter
from the United States Department of Justice, Immigration and Naturalization Service [INS] which
reads: [7]
File No. A20 988 618
Date: Nov. 5, 199
1LOS914732
Geraghty, O'Loughlin and Kenney
Attn: David C. Hutchinson
386 N. Nasbasha StreetSt. Paul, Minn. 55102-1308
SUBJECT:
Daza, Raul A.
Your request was received in this office on ________________; please note the paragraph(s) checked
below:
xxx xxx xxx
10. [XX] Other remarks:
Service File A20 968 619 relating to Raul Daza reflects: subject became a Lawful Permanent Resident on
Oct. 16, 1974. As far as we know object (sic)still has his greencard. No he has not applied for citizenship.
Sinerely, (sic)
Sgd.District Director
Form G-343 (Rev. 8-20-82)N
We vote to dismiss the instant prohibition case. First, this case is already moot and academic for it is
evident from the manifestation filed by petitioners dated April 6, 1992 [8] that they seek to unseat
respondent from his position as Congressman for the duration of his term of office commencing June 30,
1987 and ending June 30, 1992. Secondly, jurisdiction of this case rightfully pertains to the House
Electoral Tribunal. Under Section 17 of Article VI of the 1987 Constitution, it is the House Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns and qualification of its
members. Since petitioners challenge the qualifications of Congressman Daza, the appropriate remedy
should have been to file a petition to cancel respondent Daza's certificate of candidacy before the
election [9] or a quo warranto case with the House Electoral Tribunal within ten [10] days after Daza's
proclamation. [10] Third, a writ of prohibition can no longer be issued against respondent since his term
has already expired. A writ or prohibition is not intended to provide for acts already
consummated. [11] Fourth, as a de facto public officer, [12] respondent cannot be made to reimburse
funds disbursed during his term of office because his acts are as valid as those of a de jureofficer.
Moreover, as a de facto officer, he is entitled to emoluments for actual services rendered. [13]
ACCORDINGLY, the Court resolved to DISMISS the instant petition for being moot and academic.cralaw
SO ORDERED.cralaw

________

EN BANC

[G.R. No. L-3913. August 7, 1952.]

EULOGIO RODRIGUEZ, SR., Plaintiff-Appellant, v. CARLOS TAN, Defendant-Appellee.

Ramon Diokno and Jose W. Diokno for Appellant.

Agustin Alvarez Salazar for Appellee.

SYLLABUS

1. SENATOR, OUSTED THROUGH ELECTION PROTEST, AS A DE FACTO OFFICER; RIGHT TO

COMPENSATION, EMOLUMENTS AND ALLOWANCES. A senator who had been proclaimed and had
assumed office, but was later on ousted as a result of an election protest, is a de facto officer during the
time he held the office of senator, and is entitled to the compensation, emoluments and allowances which
our Constitution provides for the position. This is the policy and the rule that has been followed
consistently in this jurisdiction.

2. JUDGMENTS; RES JUDICATA; DAMAGES IN ELECTION PROTEST; ELECTORAL TRIBUNAL,

SCOPE OF POWERS OF. Where the Senate Electoral Tribunal chose to pass sub silentio, or ignored
altogether, an important claim for damages in connection with an election protest a matter incident to
the power and authority given to the Tribunal by the Constitution, whose jurisdiction over election cases is
ample and unlimited the clear implication is that it deemed it unjustified. This matter cannot be passed
upon in another action for recovery of said damages in accordance with the principle of res judicata.

3. PLEADINGS AND PRACTICE; COMPLAINT, AVERMENT IN, AS A CONCLUSION OF LAW; MOTION

TO DISMISS. The averment in a complaint that "defendant usurped the office of Senator of the
Philippines" is a conclusion of law not a statement of fact - when the particular facts on which the
alleged usurpation is predicated are not set forth therein. Such averment cannot be deemed admitted by
a motion to dismiss.

DECISION

BAUTISTA ANGELO, J.:

Plaintiff seeks to collect from the defendant the aggregate sum of P18,400 as salaries and allowances,
and the sum of P35,524.55 as damages, upon the plea that the latter usurped the office of Senator of the
Philippines which rightfully belongs to the former from December 30, 1947, to December 27, 1949.

Plaintiff claims that on December 30, 1947, defendant usurped the office of Senator of the Philippines,
and from that date until December 1949, he continuously collected the salaries, emoluments and
privileges attendant to that office amounting to P18,400; that protest having been filed by plaintiff against
defendant, the Senate Electoral Tribunal on December 16, 1949, rendered judgment declaring plaintiff to
have been duly elected to the office; and that by reason of such usurpation, plaintiff suffered damages in
the amount of P35,524.55 for expenses he incurred in prosecuting the protest.
On February 2, 1950, defendant filed a motion to dismiss alleging, on one hand, that the judgment
rendered by the Senate Electoral Tribunal in the protest case is a bar to this action under the principle of
res judicata, and, on the other, that said Tribunal denied without any reservation the claim of the plaintiff
for expenses incurred in prosecuting the protest.

The issue having been thus joined upon the motion to dismiss, the Court entered on an order dismissing
the complaint with costs. From this order plaintiff has appealed.

The averment in the complaint that "defendant usurped the office of Senator of the Philippines" is a
conclusion of law, not a statement of fact, inasmuch as the particular facts on which the alleged
usurpation is predicated are not set forth therein. Hence such averment cannot be deemed admitted by
the motion to dismiss (Fressel v. Mariano Uy Chaco & Sons & Co., 34 Phil., 122). Moreover, such
averment is negatived by the decision of the Senate Electoral Tribunal in the protest case which says that
defendant was one of those proclaimed elected as Senator in the general elections held on November 11,
1947. Defendant, cannot, therefore, be considered a usurper as claimed in the complaint.

With this preliminary statement, let us now proceed to determine the only issue involved in this appeal, to
wit, whether defendant, who has been proclaimed, took the oath of office, and discharged the duties of
Senator, can be ordered to reimburse the salaries and emoluments he has received during his
incumbency to the plaintiff who has been legally declared elected by the Senate Electoral Tribunal.

Plaintiff claims that, as defendant was found by final judgment not to have been entitled to the office of
Senator, and, as such, he was during the time he discharged that office a mere de facto officer, he should
reimburse to the plaintiff the salaries and emoluments he has received on the following grounds; (1)
because the salaries and emoluments follow and are inseparable from legal title to the office and do not
depend on whether the duties of the office are discharged or not; and (2) because such a rule tends to
curb election frauds and lessens the danger and frequency of usurpation or intrusion into the office.
Plaintiff invites the attention of the Court to the annotation appearing in 93 A.L.R. 258, 273 et seq.,
supplemented in 151 A.L.R. 952, 960, et seq., wherein more than 100 cases are cited in support of the
rule.

Defendant, on the other hand, contends that the rule invoked by plaintiff, while sound and plausible,
cannot be invoked in the present case, since it runs counter to the principle and rule long observed in this
jurisdiction to the effect that one who has been elected to an office, and has been proclaimed by the
corresponding authority, has a right to assume the office and discharge its functions notwithstanding the
protest filed against his election, and as a necessary consequence he has likewise the right to collect and
receive the salaries and emoluments thereunto appertaining as a compensation for the services he has
rendered. Defendant avers that plaintiff already attempted to seek the reimbursement of the salaries and
emoluments he had received in the protest he has filed against him but failed and the implicit denial of his
claim by the Senate Electoral Tribunal constitutes a bar to his right to collect the same salaries and
emoluments in the present case.

After a careful consideration of the issue in the light of the law and precedents obtaining in this
jurisdiction, we are inclined to uphold the point of view of the defendant. There is no question that the
defendant acted as a de facto officer during the time he held the office of Senator. He was one of the
candidates of the Liberal Party in the elections of November 11, 1947, and was proclaimed as one of
those who had been elected by the Commission on Elections, and thereafter he took the oath of office
and immediately entered into the performance of the duties of the position. Having been thus duly
proclaimed as Senator and having assumed office as required by law, it cannot be disputed that
defendant is entitled to the compensation, emoluments and allowances which our Constitution provides
for the position (article VI, section 14). This is as it should be. This is in keeping with the ordinary course
of events. This is simple justice. The emolument must go to the person who rendered the service unless
the contrary is provided. There is no averment in the complaint that he is linked with any irregularity
vitiating his election. This is the policy and the rule that has been followed consistently in this jurisdiction
in connection with positions held by persons who had been elected thereto but were later ousted as a
result of an election protest. The right of the persons elected to compensation during their incumbency
has always been recognized. We cannot recall of any precedent wherein the contrary rule has been
upheld.

A case which may be invoked in support of this point of view is Page v. U. S. (127 U. S. 67; 32 Law ed.
65), decided by the Supreme Court of the United States. In that case, one William A. Pirce was declared
elected, received a certificate of election, was sworn in and took his seat in the Congress of the United
States. His election was contested by Charles H. Page, and as a result the House of Representatives
found that Pirce was not duly elected and declared his seat vacant. An election was thereafter held to fill
the vacancy and Page was duly elected. Thereupon Page was sworn in and took his seat. Page later
sued to recover the salary received by Pirce during his incumbency. The Supreme Court ruled that he
was not entitled to it holding that "one whose credentials showed that he was regularly elected a member
of Congress, and who was sworn in and took his seat, and served, and drew his salary, was although
his seat was contested, and subsequently he was declared by Congress not to have been elected, and
his seat was declared vacant the predecessor of the person elected to fill the vacancy." This case,
though it arose under a special statute, is significant in that it regarded Pirce as the lawful predecessor of
Page in the office to which he was later legally elected. Pirce was declared entitled to the salary and
emoluments of the office.

We are sympathetic to the rule earnestly advocated by the plaintiff which holds that the salaries and
emoluments should follow the legal title to the office and should not depend on whether the duties of the
office are discharged or not, knowing that it is predicated on a policy designed to discourage the
Commission of frauds and to lessen the danger and frequency of usurpation or intrusion into the office
which defeat the will of the people. We are conscious that, if the role is adopted, it would indeed have a
wholesome effect in future elections and would serve as a deterring factor in the commission of frauds,
violence and terrorism which at times are committed in some sectors of our country to the detriment of
public interest. But an examination of the cases relied upon by him, discloses that in some states, like
Indiana, New York, Michigan, California, Louisiana, Idaho, Missouri and Washington, the doctrine
advocated is premised on express statutory provisions which permit recovery of the damages sustained
by reason of usurpation (Mechem, A Treatise on the Law of Public Offices and Officers, pp. 223-224; 93
A. L. R. pp. 284-287), whereas in the rest the ruling is based on common law (Kreitz v. Behrensmeyer, 24
A. L. R. 223-224). Under such predicament, it is indeed hard to see how we can extend here the force
and effect of such doctrine as we are urged, knowing well that, as a rule, "neither the English nor the
American common law is in force in these Islands, nor are the doctrines derived therefrom binding upon
our courts" (U. S. v. Cuna, 12 Phil., 241; Arnedo v. Llorente and Liongson, 18 Phil., 257, 262), while, on
the other hand, there is nothing in our statutes which would authorize us to adopt the rule. For us to follow
the suggestion of the plaintiff would be to legislate by judicial ruling which is beyond the province of this
Court. Nor are we justified to follow a common law principle which runs counter to a precedent long
observed in this jurisdiction.

Another reason that may be invoked in opposition to the claim of the plaintiff is the principle of res
judicata. It appears that plaintiff had already set up this claim in the protest he filed against the defendant
before the Senate Electoral Tribunal, but when the case was decided on the merits the Tribunal passed
up this matter sub silentio. In our opinion, this silence may be interpreted as a denial of the relief. This is a
matter which can be considered as an incident to the power and authority given to the Electoral Tribunal
by our Constitution, whose jurisdiction over election cases is ample and unlimited (Sanidad Et. Al. v. Vera
Et. Al., Case No. 1, Senate Electoral Tribunal), and when the Tribunal chose to pass sub silentio, or
ignore altogether, this important claim, the clear implication is that it deemed it unjustified. This matter,
therefore, cannot now be passed upon in line with the doctrine laid down in the case of Kare v. Locsin, (61
Phil., 541), wherein this Court, among other things, said:jgc:chanrobles.com.ph

"Locsin drew his pay by resolution and authority of the Legislature. The propriety of those payments
cannot be questioned on this complaint. We recognize Locsins right to receive and to retain the
compensation because the Legislature voted it to him in spite of Mr. Kares pending contest and claim to
that compensation. The Legislatures determination of Mr. Locsins right to compensation necessarily
carries the corollary of Mr. Kares lack of right to the same compensation. The Legislature might possibly
have required reimbursement by Locsin had it been its intention to recognize Mr. Kares claim to the same
compensation; but not having done so, Locsins superior right to this compensation is res judicata for the
courts." (Kare v. Locsin, 61 Phil., pp. 541, 546.)

The same consideration may be made with regard to the claim for damages contained in the second
cause of action of the complaint.

Wherefore, the order appealed from is affirmed, with costs against the Appellant.
_______

G.R. No. 120193 March 6, 1996

LUIS MALALUAN, petitioner,

vs.
COMMISSION ON ELECTIONS and JOSEPH EVANGELISTA, respondents.

HERMOSISIMA, JR., J.:p

Novel is the situation created by the decision of the Commission on Elections which declared the winner
in an election contest and awarded damages, consisting of attorney's fees, actual expenses for xerox
copies, unearned salary and other emoluments for the period, from March, 1994 to April, 1995, en masse
denominated as actual damages, notwithstanding the fact that the electoral controversy had become
moot and academic on account of the expiration of the term of office of the Municipal Mayor of
Kidapawan, North Cotabato.

Before us is a petition for certiorari and prohibition, with a prayer for the issuance of a temporary
restraining order and writ of preliminary injunction, seeking the review of the decision en banc 1 of the
Commission of Elections (COMELEC) denying the motion for reconsideration of the decision 2 of its First
Division, 3 which reversed the decision 4 of the Regional Trial Court 5 in the election case 6 involving the
herein parties. While the Regional Trial Court had found petitioner Luis Malaluan to be the winner of the
elections for the position of Municipal Mayor of Kidapawan, North Cotabato, the COMELEC, on the
contrary, found private respondent Joseph Evangelista to be the rightful winner in said elections.

Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty candidates in
the Municipality of Kidapawan, North Cotabato, in the Synchronized National and Local Elections held on
May 11, 1992. Private respondent Joseph Evangelista was proclaimed by the Municipal Board of
Canvassers as the duly elected Mayor for having garnered 10,498 votes as against petitioner's 9,792
votes. Evangelista was, thus, said to have a winning margin of 706 votes. But, on May 22, 1992,
petitioner filed an election protest with the Regional Trial Court contesting 64 out of the total 181 precincts
of the said municipality. The trial court declared petitioner as the duly elected municipal mayor of
Kidapawan, North Cotabato with a plurality of 154 votes. Acting without precedent, the court found private
respondent liable not only for Malaluan's protest expenses but also for moral and exemplary damages
and attorney's fees. On February 3, 1994, private respondent appealed the trial court decision to the
COMELEC.

Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for execution pending appeal.
The motion was granted by the trial court, in an order, dated March 8, 1994, after petitioner posted a bond
in the amount of P500,000.00. By virtue of said order, petitioner assumed the office of Municipal Mayor of
Kidapawan, North Cotabato, and exercised the powers and functions of said office. Such exercise was
not for long, though. In the herein assailed decision adverse to Malaluan's continued governance of the
Municipality of Kidapawan, North Cotabato, the First Division of the Commission on Elections
(COMELEC) ordered Malaluan to vacate the office, said division having found and so declared private
respondent to be the duly elected Municipal Mayor of said municipality. The COMELEC en banc affirmed
said decision.

Malaluan filed this petition before us on May 31, 1995 as a consequence.

It is significant to note that the term of office of the local officials elected in the May, 1992 elections
expired on June 30, 1995. This petition, thus, has become moot and academic insofar as it concerns
petitioner's right to the mayoralty seat in his municipality 7 because expiration of the term of office
contested in the election protest has the effect of rendering the same moot and academic. 8

When the appeal from a decision in an election case has already become moot, the case being an
election protest involving the office of mayor the term of which had expired, the appeal is dismissible on
that ground, unless the rendering of a decision on the merits would be of practical value. 9 This rule we
established in the case of Yorac vs. Magalona 10 which we dismissed because it had been mooted by the
expiration of the term of office of the Municipal Mayor of Saravia, Negros Occidental. This was the object
of contention between the parties therein. The recent case of Atienza vs. Commission on
Elections, 11 however, squarely presented the situation that is the exception to that rule.

Comparing the scenarios in those two cases, we explained:

Second, petitioner's citation of Yorac vs. Magalona as authority for his main proposition is
grossly inappropriate and misses the point in issue. The sole question in that case
centered on an election protest involving the mayoralty post in Saravia, Negros
Occidental in the general elections of 1955, which was rendered moot and academic by
the expiration of the term of office in December, 1959. It did not involve a monetary award
for damages and other expenses incurred as a result of the election protest. In response
to the petitioner's contention that the issues presented before the court were novel and
important and that the appeal should not be dismissed, the Court held citing the same
provision of the Rules of Court upon which petitioner staunchly places reliance that a
decision on the merits in the case would have no practical value at all, and forthwith
dismissed the case for being moot. That is not the case here. In contradistinction to
Yorac, a decision on the merits in the case at bench would clearly have the practical
value of either sustaining the monetary award for damages or relieving the private
respondent from having to pay the amount thus awarded. 12

Indeed, this petition appears now to be moot and academic because the herein parties are contesting an
elective post to which their right to the office no longer exists. However, the question as to damages
remains ripe for adjudication. The COMELEC found petitioner liable for attorney's fees, actual expenses
for xerox copies, and unearned salary and other emoluments from March, 1994 to April, 1995, en masse
denominated as actual damages, default in payment by petitioner of which shall result in the collection of
said amount from the bond posted by petitioner on the occasion of the grant of his motion for execution
pending appeal in the trial court. Petitioner naturally contests the propriety and legality of this award upon
private respondent on the ground that said damages have not been alleged and proved during trial.
What looms large as the issue in this case is whether or not the COMELEC gravely abused its discretion
in awarding the aforecited damages in favor of private respondent.

The Omnibus Election Code provides that "actual or compensatory damages may be granted in all
election contests or in quo warranto proceedings in accordance with law." 13 COMELEC Rules of
Procedure provide that "in all election contests the Court may adjudicate damages and attorney's fees as
it may deem just and as established by the evidence if the aggrieved party has included such claims in his
pleadings." 14 This appears to require only that the judicial award of damages be just and that the same
be borne out by the pleadings and evidence The overriding requirement for a valid and proper award of
damages, it must be remembered, is that the same is in accordance with law, specifically, the provisions
of the Civil Code pertinent to damages.

Article 2199 of the Civil Code mandates that "except as provided by law or by stipulation, one is entitled to
an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages." The Civil Code further prescribes the
proper setting for allowance of actual or compensatory damages in the following provisions:

Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted
in good faith is liable shall be those that are the natural and probable consequences of
the breach of the obligation, and which the parties have foreseen or could have
reasonably foreseen at the time the obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obliger shall be responsible for
all damages which may be reasonably attributed to the non-performance of the
obligation.

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which
are the natural and probable consequences of the act or omission complained of. It is not
necessary that such damages have been foreseen or could have reasonably been
foreseen by the defendant.

Considering that actual or compensatory damages are appropriate only in breaches of obligations in
cases of contracts and quasi-contracts and on the occasion of crimes and quasi-delicts where the
defendant may be held liable for all damages the proximate cause of which is the act or omission
complained of, the monetary claim of a party in an election case must necessarily be hinged on either a
contract or a quasi-contract or a tortious act or omission or a crime, in order to effectively recover actual
or compensatory damages. 15 In the absence of any or all of these, "the claimant must be able to point out
a specific provision of law authorizing a money claim for election protest expenses against the losing
party" 16. For instance, the claimant may cite any of the following provisions of the Civil Code under the
chapter on human relations, which provisions create obligations not by contract, crime or negligence, but
directly by law:

Art. 19. Every person must in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
 xxx xxx xxx

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs any of the following
rights and liberties of another person shall be liable to the latter for damages:

xxx xxx xxx

(5) Freedom of suffrage;

In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to commence an
entirely separate and distinct civil action for damages, and for other relief. . . . 17

Claimed as part of the damages to which private respondent is allegedly entitled to, is P169,456.00
constituting salary and other emoluments from March, 1994 to April, 1995 that would have accrued to him
had there not been an execution of the trial court's decision pending appeal therefrom in the COMELEC.

The long-standing rule in this jurisdiction is that notwithstanding his subsequent ouster as a result of an
election protest, an elective official who has been proclaimed by the COMELEC as winner in an electoral
contest and who assumed office and entered into the performance of the duties of that office, is entitled to
the compensation, emoluments and allowances legally provided for the position. 18 We ratiocinated in the
case of Rodriguez vs. Tan that:

This is as it should be. This is in keeping with the ordinary course of events. This is
simple justice. The emolument must go to the person who rendered the service unless
the contrary is provided. There is no averment in the complaint that he is linked with any
irregularity vitiating his election. This is the policy and the rule that has been followed
consistently in this jurisdiction in connection with positions held by persons who had been
elected thereto but were later ousted as a result of an election protest. The right of the
persons elected to compensation during their incumbency has always been recognized.
We cannot recall of any precedent wherein the contrary rule has been upheld. 19

In his concurring opinion in the same case, however, Justice Padilla equally stressed that, while
the general rule is that the ousted elective official is not obliged to reimburse the emoluments of
office that he had received before his ouster, he would be liable for damages in case he would be
found responsible for any unlawful or tortious acts in relation to his proclamation. We quote the
pertinent portion of that opinion for emphasis:

Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious

acts which led to and resulted in his proclamation as senator-elect, when in truth and in
fact he was not so elected, he would be answerable for damages. In that event the salary,
fees and emoluments received by or paid to him during his illegal incumbency would be a
proper item of recoverable damage. 20

The criterion for a justifiable award of election protest expenses and salaries and emoluments,
thus, remains to be the existence of a pertinent breach of obligations arising from contracts or
quasi-contracts, tortious acts, crimes or a specific legal provision authorizing the money claim in
 the context of election cases. Absent any of these, we could not even begin to contemplate
liability for damages in election cases, except insofar as attorney's fees are concerned, since the
Civil Code enumerates the specific instances when the same may be awarded by the court.

Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other
than judicial costs, cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with third
persons or to incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the
plaintiffs plainly valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled
workers;

(8) In actions for indemnity under workmen's compensation and employer's liability laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorney's fees
and expenses of litigation should be recovered. 21

Given the aforecited laws, and jurisprudence on the matter at issue, let us now look into the basis of
respondent COMELEC for awarding actual damages to private respondent in the form of reimbursement
for attorney's fees, actual expenses for xerox copies, and salary and other emoluments that should have
accrued to him from March, 1994 to April, 1995 had the RTC not issued an order for execution pending
appeal.

The First Division of the COMELEC ruled on private respondent's claim for actual or compensatory
damages in this wise:

. . . under the present legal setting, it is more difficult than in the past to secure an award
of actual or compensatory damages either against the protestant or the protestee
because of the requirerments of the law.

In the instant case, however, We are disposed to conclude that the election protest filed
by the protestant is clearly unfounded. As borne out by the results of the appreciation of
 ballots conducted by this Commission, apparently the protest was filed in bad faith
without sufficient cause or has been filed for the sole purpose of molesting the protestee-
appellant for which he incurred expenses. The erroneous ruling of the Court which
invalidated ballots which were clearly valid added more injury to the protestee-appellant.
This would have been bearable since he was able to perfect his appeal to this
Commission. The final blow, however, came when the Court ordered the execution of
judgment pending appeal which, from all indications, did not comply with the
requirements of Section 2, Rule 39 of the Rules of Court. There was no good and special
reason at all to justify the execution of judgment pending appeal because the protestee's
winning margin was 149 votes while that of the protestant after the Court declared him
a winner was only a margin of 154 votes. Clearly, the order of execution of judgment
pending appeal was issued with grave abuse of discretion.

For these reasons, protestee-appellant seeks to recover the following:

1. Actual damages representing attorney's fees for the new counsel who handled the
Appeal and the Petition for Certiorari before the Court of Appeals . . . P372,500.00

2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies at
P1.50 . . . P11,235.00

3. Actual expenses for xerox copying of ballots . . . P3,919.20

4. Actual damages for loss of salary and other emoluments since March 1994 as per
attached Certification issued by the Municipal Account of Kidapawan . . . P96,832.00 (up
to October 1994 only)

Under Article 2208 of the New Civil Code attorney's fees and expenses of litigation can
be recovered (as actual damages) in the case of clearly unfounded civil action or
proceeding. And, while the case of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724)
disallowed recovery of salaries and allowances (as damages) from elected officials who
were later ousted, under the theory that persons elected has (sic) a right to compensation
during their incumbency, the instant case is different. The protestee-appellant was the
one elected. He was ousted not by final judgment bur by an order of execution pending
appeal which was groundless and issued with grave abuse of discretion. Protestant-
appellee occupied the position in an illegal manner as a usurper and, not having been
elected to the office, but merely installed through a baseless court order, he certainly had
no right to the salaries and emoluments of the office.

Actual damages in the form of reimbursement for attorney's fees (P372,500.00), actual
expenses for xerox copies (P15,154.00), unearned salary and other emoluments from
March 1994 to April 1995 or 14 months at P12,104.00 a month (P169,456.00), totalled
P557,110.00. To (sic) this amount, however, P300,000.00 representing that portion of
attorney's fees denominated as success fee' must be deducted this being premised on a
contingent event the happening of which was uncertain from the beginning. Moral
damages and exemplary damages claimed are, of course, disallowed not falling within
the purview of Section 259 of the Omnibus Election Code.
 It goes without saying that if the protestant-appellee fails to pay the actual damages of
P257,110.00, the amount will be assessed, levied and collected from the bond of
P500,000.00 which he put up before the Court as
a condition for the issuance of the order of execution of judgment pending appeal. 22

Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995. The
COMELEC en banc, however, did not find any new matter substantial in nature, persuasive in character
or sufficiently provocative to compel reconsideration of said decision and accordingly affirmed in toto the
said decision. Hence, this petition raises, among others, the issue now solely remaining and in need of
final adjudication in view of the mootness of the other issues anent petitioner's right to the contested office
the term for which has already expired.

We have painstakingly gone over the records of this case and we can attribute to petitioner no breach of
contract or quasi-contract; or tortious act nor crime that may make him liable for actual damages. Neither
has private respondent been "able to point out to a specific provision of law authorizing a money claim for
election protest expenses against the losing party." 23

We find respondent COMELEC's reasoning in awarding the damages in question to be fatally flawed. The
COMELEC found the election protest filed by the petitioner to be clearly unfounded because its own
appreciation of the contested ballots yielded results contrary to those of the trial court. Assuming, ex
gratia argumentis, that this is a reasonable observation not without basis, it is nonetheless fallacious to
conclude a malicious intention on the part of petitioner to molest private respondent on the basis of what
respondent COMELEC perceived as an erroneous ruling of the trial court. In other words, the actuations
of the trial court, after the filing of a case before it, are its own, and any alleged error on its part does not,
in the absence of clear proof, make the suit "clearly unfounded" for which the complainant ought to be
penalized. Insofar as the award of protest expenses and attorney's fees are concerned, therefore we find
them to have been awarded by respondent COMELEC without basis, the election protest not having been
a clearly unfounded one under the aforementioned circumstances.

Respondent COMELEC also found the order granting execution of judgment pending appeal to be
defective because of alleged non-compliance with the requirement that there be a good and special
reason 24 to justify execution pending appeal. We, however, find that the trial court acted judiciously in the
exercise of its prerogatives under the law in issuing the order granting execution pending appeal. First, it
should be noted that the applicability of the provisions of the Rules of Court, relating to execution pending
appeal, has ceased to be debatable after we definitively ruled in Garcia vs. de Jesus 25 that "Section 2,
Rule 39 of the Rules of Court, which allows Regional Trial Courts to order executions pending appeal
upon good reasons stated in a special order, may be made to apply by analogy or suppletorily to election
contests decided by them." 26 It is not disputed that petitioner filed a bond in the amount of P500,000.00
as required under the Rules of Court.

It is also now a settled rule that "as much recognition should be given to the value of the decision of a
judicial body as a basis for the right to assume office as that given by law to the proclamation made by the
Board of Canvassers." 27

. . . Why should the proclamation by the board of canvassers suffice as basis of the right
to assume office, subject to future contingencies attendant to a protest, and not the
decision of a court of justice? Indeed . . . the board of canvassers is composed of
persons who are less technically prepared to make an accurate appreciation of the
 ballots, apart from their being more apt to yield extraneous considerations . . . the board
must act summarily, practically raising (sic) against time, while, on the other hand, the
judge has the benefit of all the evidence the parties can offer and of admittedly better
technical preparation and background, apart from his being allowed ample time for
conscientious study and mature deliberation before rendering judgment . . . . 28

Without evaluating the merits of the trial court's actual appreciation of the ballots contested in the
election protest, we note on the face of its decision that the trial court relied on the findings of the
National Bureau of Investigation (NBI) handwriting experts which findings private respondent did
not even bother to rebut. We thus see no reason to disregard the presumption of regularity in the
performance of official duty on the part of the trial court judge. Capping this combination of
circumstances which impel the grant of immediate execution is the undeniable urgency involved
in the political situation in the Municipality of Kidapawan, North Cotabato. The appeal before the
COMELEC would undoubtedly cause the political vacuum in said municipality to persist, and so
the trial court reasonably perceived execution pending appeal to be warranted and justified.
Anyway, the bond posted by petitioner could cover any damages suffered by any aggrieved party.
It is true that mere posting of a bond is not enough reason to justify execution pending appeal, but
the nexus of circumstances aforechronicled considered together and in relation to one another, is
the dominant consideration for the execution pending appeal. 29

Finally, we deem the award of salaries and other emoluments to be improper and lacking legal sanction.
Respondent COMELEC ruled that inapplicable in the instant case is the ruling in Rodriguez
vs. Tan 30 because while in that case the official ousted was the one proclaimed by the COMELEC, in the
instant case, petitioner was proclaimed winner only by the trial court and assumed office by virtue of an
order granting execution pending appeal. Again, respondent COMELEC sweepingly concluded, in
justifying the award of damages, that since petitioner was adjudged the winner in the elections only by the
trial court and assumed the functions of the office on the strength merely of an order granting execution
pending appeal, the petitioner occupied the position in an illegal manner as a usurper.

We hold that petitioner was not a usurper because, while a usurper is one who undertakes to act officially
without any color of right, 31 the petitioner exercised the duties of an elective office under color of election
thereto. 32 It matters not that it was the trial court and not the COMELEC that declared petitioner as the
winner, because both, at different stages of the electoral process, have the power to so proclaim winners
in electoral contests. At the risk of sounding repetitive, if only to emphasize this point, we must reiterate
that the decision of a judicial body is no less a basis than the proclamation made by the COMELEC-
convened Board of Canvassers for a winning candidate's right to assume office, for both are undisputedly
legally sanctioned. We deem petitioner, therefore, to be a "de facto officer who, in good faith, has had
possession of the office and had discharged the duties pertaining thereto" 33 and is thus "legally entitled to
the emoluments of the office." 34

To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in election cases
of actual and compensatory damages in accordance with law. The victorious party in an election case
cannot be indemnified for expenses which he has incurred in an electoral contest in the absence of a
wrongful act or omission or breach of obligation clearly attributable to the losing party. Evidently, if any
damage had been suffered by private respondent due to the execution of judgment pending appeal, that
damage may be said to be equivalent to damnum absque injuria, which is, damage without injury, or
damage or injury inflicted without injustice, or loss or damage without violation of a legal right, or a wrong
done to a man for which the law provides no remedy. 35
WHEREFORE, the petition for certiorari is GRANTED. While we uphold the COMELEC decision dated
May 5, 1995 that private respondent Joseph Evangelista is the winner in the election for mayor of the
Municipality of Kidapawan, North Cotabato, that portion of the decision is deemed moot and academic
because the term of office for mayor has long expired. That portion of the decision awarding actual
damages to private respondent Joseph Evangelista is hereby declared null and void for having been
issued in grave abuse of discretion and in excess of jurisdiction.

SO ORDERED.