Republic of the Philippines ANGELA GUEVARRA; WALDEN F.
BELLO and LORETTA
SUPREME COURT
Baguio City
EN BANC
G.R. No. 191002 April 20, 2010
ARTURO M. DE CASTRO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT
GLORIA MACAPAGAL - ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF
THE CONSTITUTION TO APPOINTMENTS TO THE
JUDICIARY, ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM;
ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLES
LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF
THE PHILIPPINES-DAVAO DEL SUR CHAPTER,
represented by its Immediate Past President, ATTY.
ISRAELITO P. TORREON, and the latter in his own
personal capacity as a MEMBER of the PHILIPPINE BAR;
MITCHELL JOHN L. BOISER; BAGONG ALYANSANG
BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY GENERAL RENATO M.
REYES, JR.; CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCE-MENT OF GOVERNMENT
EMPLOYEES (COURAGE) CHAIRMAN FERDINAND
GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP
(KADAMAY) SECRETARY GENERAL GLORIA ARELLANO;
ALYANSA NG NAGKAKAISANG KABATAAN NG
SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN)
CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA
CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO
STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY
LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF
THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN
RECEDES; COLLEGE EDITORS GUILD OF THE
PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA;
and STUDENT CHRISTIAN MOVEMENT OF THE
PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA
ANN P. ROSALES; WOMEN TRIAL LAWYERS
ORGANIZATION OF THE PHILIPPINES, represented by
YOLANDA QUISUMBING-JAVELLANA; BELLEZA
ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN;
MA. VERENA KASILAG-VILLANUEVA; MARILYN STA.
ROMANA; LEONILA DE JESUS; and GUINEVERE DE
LEON; AQUILINO Q. PIMENTEL, JR.;Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-
Southern Luzon), and ATTY. ROLAND B. INTING
(IBPGovernor-Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY
GLORIA MACAPAGAL-ARROYO, Respondents.
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision,
holding:
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R.
No. 191002 and G.R. No. 191149, and the petition for
mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and
G.R. No. 191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly,
directs the Judicial and Bar Council:
(a) To resume its proceedings for the nomination of candidates
to fill the vacancy to be created by the compulsory retirement
of Chief Justice Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief
Justice;
(c) To submit to the incumbent President the short list of
nominees for the position of Chief Justice on or before May 17,
2010; and
(d) To continue its proceedings for the nomination of candidates
to fill other vacancies in the Judiciary and submit to the
President the short list of nominees corresponding thereto in
accordance with this decision.
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z.
Tolentino and Roland B. Inting (G.R. No. 191342), and Philippine
Bar Association (G.R. No. 191420), as well as intervenors
Integrated Bar of the Philippines-Davao del Sur (IBP-Davao del
Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera;
Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V.
Tan, Jr.; the Women Trial Lawyers Organization of the
Philippines (WTLOP); Marlou B. Ubano; Mitchell John L. Boiser;
and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.),
filed their respective motions for reconsideration. Also filing a
motion for reconsideration was Senator Aquilino Q. Pimentel,
Jr., whose belated intervention was allowed.
We summarize the arguments and submissions of the various
motions for reconsideration, in the aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the issue
of whether or not the power to designate the Chief Justice
belonged to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because
it sought a mere declaratory judgment and did not involve a
justiciable controversy.
3. All Justices of the Court should participate in the next
deliberations. The mere fact that the Chief Justice sits as ex
officio head of the JBC should not prevail over the more
compelling state interest for him to participate as a Member of
the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an
interpretation that exempts judicial appointments from the
express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made
distinctions and has created exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII,
not in Article VIII, because it limits an executive, not a judicial,
power.
4. Resort to the deliberations of the Constitutional Commission
is superfluous, and is powerless to vary the terms of the clear
prohibition.
5. The Court has given too much credit to the position taken by
Justice Regalado. Thereby, the Court has raised the Constitution
to the level of a venerated text whose intent can only be divined
by its framers as to be outside the realm of understanding by
the sovereign people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear legal
standing to question the illegal composition of the JBC.
Philippine Bar Association
1. The Courts strained interpretation of the Constitution violates
the basic principle that the Court should not formulate a rule of
constitutional law broader than what is required by the precise
facts of the case.
2. Considering that Section 15, Article VII is clear and
straightforward, the only duty of the Court is to apply it. The
provision expressly and clearly provides a general limitation on
the appointing power of the President in prohibiting the
appointment of any person to any position in the Government
without any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the
constitutional safeguard against midnight appointments.
4. The Constitution has installed two constitutional safeguards:-
the prohibition against midnight appointments, and the creation
of the JBC. It is not within the authority of the Court to prefer
one over the other, for the Courts duty is to apply the
safeguards as they are, not as the Court likes them to be.
5. The Court has erred in failing to apply the basic principles of
statutory construction in interpreting the Constitution.
6. The Court has erred in relying heavily on the title, chapter or
section headings, despite precedents on statutory construction
holding that such headings carried very little weight.
7. The Constitution has provided a general rule on midnight
appointments, and the only exception is that on temporary
appointments to executive positions.
8. The Court has erred in directing the JBC to resume the
proceedings for the nomination of the candidates to fill the
vacancy to be created by the compulsory retirement of Chief
Justice Puno with a view to submitting the list of nominees for
Chief Justice to President Arroyo on or before May 17, 2010. The
Constitution grants the Court only the power of supervision over
the JBC; hence, the Court cannot tell the JBC what to do, how
to do it, or when to do it, especially in the absence of a real and
justiciable case assailing any specific action or inaction of the
JBC.
9. The Court has engaged in rendering an advisory opinion and
has indulged in speculations.
10. The constitutional ban on appointments being already in
effect, the Courts directing the JBC to comply with the decision
constitutes a culpable violation of the Constitution and the
commission of an election offense.
11. The Court cannot reverse on the basis of a secondary
authority a doctrine unanimously formulated by the Court en
banc.
12. The practice has been for the most senior Justice to act as
Chief Justice whenever the incumbent is indisposed. Thus, the
appointment of the successor Chief Justice is not urgently
necessary.
13. The principal purpose for the ban on midnight appointments
is to arrest any attempt to prolong the outgoing Presidents
powers by means of proxies. The attempt of the incumbent
President to appoint the next Chief Justice is undeniably
intended to perpetuate her power beyond her term of office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of
the Constitution applies to appointments to the Judiciary. Hence,
no cogent reason exists to warrant the reversal of the
Valenzuela pronouncement.
2. Section 16, Article VII of the Constitution provides for
presidential appointments to the Constitutional Commissions
and the JBC with the consent of the Commission on
Appointments. Its phrase "other officers whose appointments
are vested in him in this Constitution" is enough proof that the
limitation on the appointing power of the President extends to
appointments to the Judiciary. Thus, Section 14, Section 15, and
Section 16 of Article VII apply to all presidential appointments
in the Executive and Judicial Branches of the Government.
3. There is no evidence that the framers of the Constitution
abhorred the idea of an Acting Chief Justice in all cases.
Lim
1. There is no justiciable controversy that warrants the Courts
exercise of judicial review.
2. The election ban under Section 15, Article VII applies to
appointments to fill a vacancy in the Court and to other
appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the
safeguard under Section 15 of Article VII against midnight
appointments in the Judiciary.
Corvera
1. The Courts exclusion of appointments to the Judiciary from
the Constitutional ban on midnight appointments is based on an
interpretation beyond the plain and unequivocal language of the
Constitution.
2. The intent of the ban on midnight appointments is to cover
appointments in both the Executive and Judicial Departments.
The application of the principle of verba legis (ordinary meaning)
would have obviated dwelling on the organization and
arrangement of the provisions of the Constitution. If there is any
ambiguity in Section 15, Article VII, the intent behind the
provision, which is to prevent political partisanship in all
branches of the Government, should have controlled.
3. A plain reading is preferred to a contorted and strained
interpretation based on compartmentalization and physical
arrangement, especially considering that the Constitution must
be interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation
of the framers of the Constitution should yield to the plain and
unequivocal language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a ruling
that is reasonable and in accord with the Constitution.
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-
SC, because the petition did not present a justiciable
controversy. The issues it raised were not yet ripe for
adjudication, considering that the office of the Chief Justice was
not yet vacant and that the JBC itself has yet to decide whether
or not to submit a list of nominees to the President.
2. The collective wisdom of Valenzuela Court is more important
and compelling than the opinion of Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section
4(1), Article VIII, the Court has violated the principle of ut magis
valeat quam pereat (which mandates that the Constitution
should be interpreted as a whole, such that any conflicting
provisions are to be harmonized as to fully give effect to all).
There is no conflict between the provisions; they complement
each other.
4. The form and structure of the Constitutions titles, chapters,
sections, and draftsmanship carry little weight in statutory
construction. The clear and plain language of Section 15, Article
VII precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or
controversy. The clash of legal rights and interests in the present
case are merely anticipated. Even if it is anticipated with
certainty, no actual vacancy in the position of the Chief Justice
has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a
vacancy in the Court and the Judiciary runs in conflict with long
standing principles and doctrines of statutory construction. The
provision admits only one exception, temporary appointments in
the Executive Department. Thus, the Court should not
distinguish, because the law itself makes no distinction.
3. Valenzuela was erroneously reversed. The framers of the
Constitution clearly intended the ban on midnight appointments
to cover the members of the Judiciary. Hence, giving more
weight to the opinion of Justice Regalado to reverse the en banc
decision in Valenzuela was unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1),
Article VIII. The 90-day mandate to fill any vacancy lasts until
August 15, 2010, or a month and a half after the end of the ban.
The next President has roughly the same time of 45 days as the
incumbent President (i.e., 44 days) within which to scrutinize
and study the qualifications of the next Chief Justice. Thus, the
JBC has more than enough opportunity to examine the
nominees without haste and political uncertainty.1avvphi1
5. When the constitutional ban is in place, the 90-day period
under Section 4(1), Article VIII is suspended.
6. There is no basis to direct the JBC to submit the list of
nominees on or before May 17, 2010. The directive to the JBC
sanctions a culpable violation of the Constitution and constitutes
an election offense.
7. There is no pressing necessity for the appointment of a Chief
Justice, because the Court sits en banc, even when it acts as the
sole judge of all contests relative to the election, returns and
qualifications of the President and Vice-President. Fourteen
other Members of the Court can validly comprise the Presidential
Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to
submit the list of nominees for Chief Justice to the President on
or before May 17, 2010, and to continue its proceedings for the
nomination of the candidates, because it granted a relief not
prayed for; imposed on the JBC a deadline not provided by law
or the Constitution; exercised control instead of mere
supervision over the JBC; and lacked sufficient votes to reverse
Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored
the basic principle of statutory construction to the effect that the
literal meaning of the law must be applied when it is clear and
unambiguous; and that we should not distinguish where the law
does not distinguish.
3. There is no urgency to appoint the next Chief Justice,
considering that the Judiciary Act of 1948 already provides that
the power and duties of the office devolve on the most senior
Associate Justice in case of a vacancy in the office of the Chief
Justice.
Ubano
1. The language of Section 15, Article VII, being clear and
unequivocal, needs no interpretation
2. The Constitution must be construed in its entirety, not by
resort to the organization and arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section
15, Article VII and the pertinent records of the Constitutional
Commission are clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of
nominees to the President by May 17, 2010 at the latest,
because no specific law requires the JBC to submit the list of
nominees even before the vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the
ban on midnight appointments is the temporary appointment to
an executive position. The limitation is in keeping with the clear
intent of the framers of the Constitution to place a restriction on
the power of the outgoing Chief Executive to make
appointments.
2. To exempt the appointment of the next Chief Justice from the
ban on midnight appointments makes the appointee beholden
to the outgoing Chief Executive, and compromises the
independence of the Chief Justice by having the outgoing
President be continually influential.
3. The Courts reversal of Valenzuela without stating the
sufficient reason violates the principle of stare decisis.
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of
appointments an outgoing President is prohibited from making
within the prescribed period. Plain textual reading and the
records of the Constitutional Commission support the view that
the ban on midnight appointments extends to judicial
appointments.
2. Supervision of the JBC by the Court involves oversight. The
subordinate subject to oversight must first act not in accord with
prescribed rules before the act can be redone to conform to the
prescribed rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5-
SC, because the petition did not present a justiciable
controversy.
Pimentel
1. Any constitutional interpretative changes must be reasonable,
rational, and conformable to the general intent of the
Constitution as a limitation to the powers of Government and as
a bastion for the protection of the rights of the people. Thus, in
harmonizing seemingly conflicting provisions of the Constitution,
the interpretation should always be one that protects the
citizenry from an ever expanding grant of authority to its
representatives.
2. The decision expands the constitutional powers of the
President in a manner totally repugnant to republican
constitutional democracy, and is tantamount to a judicial
amendment of the Constitution without proper authority.
Comments
The Office of the Solicitor General (OSG) and the JBC separately
represent in their respective comments, thus:
OSG
1. The JBC may be compelled to submit to the President a short
list of its nominees for the position of Chief Justice.
2. The incumbent President has the power to appoint the next
Chief Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the
exemption of the Judiciary from the ban on midnight
appointments.1awph!1
5. The Court has the duty to consider and resolve all issues
raised by the parties as well as other related matters.
JBC
1. The consolidated petitions should have been dismissed for
prematurity, because the JBC has not yet decided at the time
the petitions were filed whether the incumbent President has
the power to appoint the new Chief Justice, and because the
JBC, having yet to interview the candidates, has not submitted
a short list to the President.
2. The statement in the decision that there is a doubt on
whether a JBC short list is necessary for the President to appoint
a Chief Justice should be struck down as bereft of constitutional
and legal basis. The statement undermines the independence of
the JBC.
3. The JBC will abide by the final decision of the Court, but in
accord with its constitutional mandate and its implementing
rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC)
submits his comment even if the OSG and the JBC were the only
ones the Court has required to do so. He states that the motions
for reconsideration were directed at the administrative matter
he initiated and which the Court resolved. His comment asserts:
1. The grounds of the motions for reconsideration were already
resolved by the decision and the separate opinion.
2. The administrative matter he brought invoked the Courts
power of supervision over the JBC as provided by Section 8(1),
Article VIII of the Constitution, as distinguished from the Courts
adjudicatory power under Section 1, Article VIII. In the former,
the requisites for judicial review are not required, which was
why Valenzuela was docketed as an administrative matter.
Considering that the JBC itself has yet to take a position on when
to submit the short list to the proper appointing authority, it has
effectively solicited the exercise by the Court of its power of
supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9,
Article VIII is to amend the Constitution.
4. The portions of the deliberations of the Constitutional
Commission quoted in the dissent of Justice Carpio Morales, as
well as in some of the motions for reconsideration do not refer
to either Section 15, Article VII or Section 4(1), Article VIII, but
to Section 13, Article VII (on nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for
all the matters being thereby raised and argued, not being new,
have all been resolved by the decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for
the purpose of clarification and emphasis.
First: Most of the movants contend that the principle of stare
decisis is controlling, and accordingly insist that the Court has
erred in disobeying or abandoning Valenzuela.1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis
et non quieta movere, i.e., to adhere to precedent and not to
unsettle things that are settled. It simply means that a principle
underlying the decision in one case is deemed of imperative
authority, controlling the decisions of like cases in the same
court and in lower courts within the same jurisdiction, unless
and until the decision in question is reversed or overruled by a
court of competent authority. The decisions relied upon as
precedents are commonly those of appellate courts, because the
decisions of the trial courts may be appealed to higher courts
and for that reason are probably not the best evidence of the
rules of law laid down. 2
Judicial decisions assume the same authority as a statute itself
and, until authoritatively abandoned, necessarily become, to the
extent that they are applicable, the criteria that must control the
actuations, not only of those called upon to abide by them, but
also of those duty-bound to enforce obedience to them.3 In a
hierarchical judicial system like ours, the decisions of the higher
courts bind the lower courts, but the courts of co-ordinate
authority do not bind each other. The one highest court does
not bind itself, being invested with the innate authority to rule
according to its best lights.4
The Court, as the highest court of the land, may be guided but
is not controlled by precedent. Thus, the Court, especially with
a new membership, is not obliged to follow blindly a particular
decision that it determines, after re-examination, to call for a
rectification.5 The adherence to precedents is strict and rigid in
a common-law setting like the United Kingdom, where judges
make law as binding as an Act of Parliament.6 But ours is not a
common-law system; hence, judicial precedents are not always
strictly and rigidly followed. A judicial pronouncement in an
earlier decision may be followed as a precedent in a subsequent
case only when its reasoning and justification are relevant, and
the court in the latter case accepts such reasoning and
justification to be applicable to the case. The application of the
precedent is for the sake of convenience and stability.
For the intervenors to insist that Valenzuela ought not to be
disobeyed, or abandoned, or reversed, and that its wisdom
should guide, if not control, the Court in this case is, therefore,
devoid of rationality and foundation. They seem to conveniently
forget that the Constitution itself recognizes the innate authority
of the Court en banc to modify or reverse a doctrine or principle
of law laid down in any decision rendered en banc or in division.7
Second: Some intervenors are grossly misleading the public by
their insistence that the Constitutional Commission extended to
the Judiciary the ban on presidential appointments during the
period stated in Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales
quoted from the records of the Constitutional Commission did
not concern either Section 15, Article VII or Section 4(1), Article
VIII, but only Section 13, Article VII, a provision on nepotism.
The records of the Constitutional Commission show that
Commissioner Hilario G. Davide, Jr. had proposed to include
judges and justices related to the President within the fourth
civil degree of consanguinity or affinity among the persons
whom the President might not appoint during his or her tenure.
In the end, however, Commissioner Davide, Jr. withdrew the
proposal to include the Judiciary in Section 13, Article VII "(t)o
avoid any further complication,"8 such that the final version of
the second paragraph of Section 13, Article VII even completely
omits any reference to the Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the
fourth civil degree of the President shall not during his tenure
be appointed as Members of the Constitutional Commissions, or
the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices,
including government-owned or controlled corporations and
their subsidiaries.
Last: The movants take the majority to task for holding that
Section 15, Article VII does not apply to appointments in the
Judiciary. They aver that the Court either ignored or refused to
apply many principles of statutory construction.
The movants gravely err in their posture, and are themselves
apparently contravening their avowed reliance on the principles
of statutory construction.
For one, the movants, disregarding the absence from Section
15, Article VII of the express extension of the ban on
appointments to the Judiciary, insist that the ban applied to the
Judiciary under the principle of verba legis. That is self-
contradiction at its worst.
Another instance is the movants unhesitating willingness to
read into Section 4(1) and Section 9, both of Article VIII, the
express applicability of the ban under Section 15, Article VII
during the period provided therein, despite the silence of said
provisions thereon. Yet, construction cannot supply the
omission, for doing so would generally constitute an
encroachment upon the field of the Constitutional Commission.
Rather, Section 4(1) and Section 9 should be left as they are,
given that their meaning is clear and explicit, and no words can
be interpolated in them.9Interpolation of words is unnecessary,
because the law is more than likely to fail to express the
legislative intent with the interpolation. In other words, the
addition of new words may alter the thought intended to be
conveyed. And, even where the meaning of the law is clear and
sensible, either with or without the omitted word or words,
interpolation is improper, because the primary source of the
legislative intent is in the language of the law itself.10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in
Section 15, Article VII to the appointment of Members of the
Supreme Court, they could have explicitly done so. They could
not have ignored the meticulous ordering of the provisions. They
would have easily and surely written the prohibition made
explicit in Section 15, Article VII as being equally applicable to
the appointment of Members of the Supreme Court in Article
VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition
against the President or Acting President making appointments
within two months before the next presidential elections and up
to the end of the Presidents or Acting Presidents term does not
refer to the Members of the Supreme Court.
We cannot permit the meaning of the Constitution to be
stretched to any unintended point in order to suit the purposes
of any quarter.
Final Word
It has been insinuated as part of the polemics attendant to the
controversy we are resolving that because all the Members of
the present Court were appointed by the incumbent President,
a majority of them are now granting to her the authority to
appoint the successor of the retiring Chief Justice.
The insinuation is misguided and utterly unfair.
The Members of the Court vote on the sole basis of their
conscience and the merits of the issues. Any claim to the
contrary proceeds from malice and condescension. Neither the
outgoing President nor the present Members of the Court had
arranged the current situation to happen and to evolve as it has.
None of the Members of the Court could have prevented the
Members composing the Court when she assumed the
Presidency about a decade ago from retiring during her
prolonged term and tenure, for their retirements were
mandatory. Yet, she is now left with an imperative duty under
the Constitution to fill up the vacancies created by such
inexorable retirements within 90 days from their occurrence. Her
official duty she must comply with. So must we ours who are
tasked by the Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with
finality.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
DISSENTING OPINION
CARPIO MORALES, J.:
No compelling reason exists for the Court to deny a
reconsideration of the assailed Decision. The various motions for
reconsideration raise hollering substantial arguments and
legitimately nagging questions which the Court must meet head
on.
If this Court is to deserve or preserve its revered place not just
in the hierarchy but also in history, passion for reason demands
the issuance of an extended and extensive resolution that
confronts the ramifications and repercussions of its assailed
Decision. Only then can it offer an illumination that any self-
respecting student of the law clamors and any adherent of the
law deserves. Otherwise, it takes the risk of reeking of an
objectionable air of supreme judicial arrogance.
It is thus imperative to settle the following issues and
concerns:
Whether the incumbent President is constitutionally
proscribed from appointing the successor of Chief
Justice Reynato S. Puno upon his retirement on May 17,
2010 until the ban ends at 12:00 noon of June 30, 2010
1. In interpreting the subject constitutional provisions, the
Decision disregarded established canons of statutory
construction. Without explaining the inapplicability of each of
the relevant rules, the Decision immediately placed premium on
the arrangement and ordering of provisions, one of the weakest
tools of construction, to arrive at its conclusion.
2. In reversing Valenzuela, the Decision held that the Valenzuela
dictum did not firmly rest on ConCom deliberations, yet it did
not offer to cite a material ConCom deliberation. It instead opted
to rely on the memory of Justice Florenz Regalado which
incidentally mentioned only the "Court of Appeals." The
Decisions conclusion must rest on the strength of its own
favorable Concom deliberation, none of which to date has been
cited.
3. Instead of choosing which constitutional provision carves out
an exception from the other provision, the most legally feasible
interpretation (in the limited cases of temporary physical or legal
impossibility of compliance, as expounded in my Dissenting
Opinion) is to consider the appointments ban or other
substantial obstacle as a temporary impossibility which excuses
or releases the constitutional obligation of the Office of the
President for the duration of the ban or obstacle.
In view of the temporary nature of the circumstance causing the
impossibility of performance, the outgoing President is released
from non-fulfillment of the obligation to appoint, and the duty
devolves upon the new President. The delay in the fulfillment of
the obligation becomes excusable, since the law cannot exact
compliance with what is impossible. The 90-day period within
which to appoint a member of the Court is thus suspended and
the period could only start or resume to run when the temporary
obstacle disappears (i.e., after the period of the appointments
ban; when there is already a quorum in the JBC; or when there
is already at least three applicants).
Whether the Judicial and Bar Council is obliged to
submit to the President the shortlist of nominees for the
position of Chief Justice (or Justice of this Court) on or
before the occurrence of the vacancy.
1. The ruling in the Decision that obligates the JBC to submit
the shortlist to the President on or before the occurrence of the
vacancy in the Court runs counter to the Concom deliberations
which explain that the 90-day period is allotted for both the
nomination by the JBC and the appointment by the President.
In the move to increase the period to 90 days, Commissioner
Romulo stated that "[t]he sense of the Committee is that 60
days is awfully short and that the [Judicial and Bar] Council, as
well as the President, may have difficulties with that."
2. To require the JBC to submit to the President a shortlist of
nominees on or before the occurrence of vacancy in the Court
leads to preposterous results. It bears reiterating that the
requirement is absurd when, inter alia, the vacancy is
occasioned by the death of a member of the Court, in which
case the JBC could never anticipate the death of a Justice, and
could never submit a list to the President on or before the
occurrence of vacancy.
3. The express allowance in the Constitution of a 90-day period
of vacancy in the membership of the Court rebuts any public
policy argument on avoiding a vacuum of even a single day
without a duly appointed Chief Justice. Moreover, as pointed out
in my Dissenting Opinion, the practice of having an acting Chief
Justice in the interregnum is provided for by law, confirmed by
tradition, and settled by jurisprudence to be an internal matter.
The Resolution of the majority, in denying the present Motions
for Reconsideration, failed to rebut the foregoing crucial
matters.
I, therefore, maintain my dissent and vote to GRANT the Motions
for Reconsideration of the Decision of March 17, 2010 insofar as
it holds that the incumbent President is not constitutionally
proscribed from appointing the successor of Chief Justice
Reynato S. Puno upon his retirement on May 17, 2010 until the
ban ends at 12:00 noon of June 30, 2010 and that the Judicial
and Bar Council is obliged to submit to the President the shortlist
of nominees for the position of Chief Justice on or before May
17, 2010.
CONCHITA CARPIO MORALES
Associate Justice
CONCURRING AND DISSENTING OPINION
BRION, J.:
The Motions for Reconsideration
After sifting through the motions for reconsideration, I found
that the arguments are largely the same arguments that we
have passed upon, in one form or another, in the various
petitions. Essentially, the issues boil down to justiciability; the
conflict of constitutional provisions; the merits of the cited
constitutional deliberations; and the status and effect of the
Valenzuela1 ruling. Even the motion for reconsideration of the
Philippine Bar Association (G.R. No. 191420), whose petition I
did not expressly touch upon in my Separate Opinion, basically
dwells on these issues.
I have addressed most, if not all, of these issues and I submit
my Separate Opinion2 as my basic response to the motions for
reconsideration, supplemented by the discussions below.
As I reflected in my Separate Opinion (which three other Justices
joined),3 the election appointment ban under Article VII, Section
15 of the Constitution should not apply to the appointment of
Members of the Supreme Court whose period for appointment
is separately provided for under Article VIII, Section 4(1). I
shared this conclusion with the Courts Decision although our
reasons differed on some points.
I diverged fully from the Decision on the question of whether
we should maintain or reverse our ruling in Valenzuela. I
maintained that it is still good law; no reason exists to touch the
ruling as its main focus the application of the election ban on
the appointment of lower court judges under Article VIII,
Section 9 of the Constitution is not even an issue in the present
case and was discussed only because the petitions incorrectly
cited the ruling as authority on the issue of the Chief Justices
appointment. The Decision proposed to reverse Valenzuela but
only secured the support of five (5) votes, while my Separate
Opinion in support of Valenzuela had four (4) votes. Thus, on
the whole, the Decision did not prevail in reversing Valenzuela,
as it only had five (5) votes in a field of 12 participating Members
of the Court. Valenzuela should therefore remain, as of the filing
of this Opinion, as a valid precedent.
Acting on the present motions for reconsideration, I join the
majority in denying the motions with respect to the Chief Justice
issue, although we differ in some respects on the reasons
supporting the denial. I dissent from the conclusion that the
Valenzuela ruling should be reversed. My divergence from the
majoritys reasons and conclusions compels me to write this
Concurring and Dissenting Opinion.
The Basic Requisites / Justiciability
One marked difference between the Decision and my Separate
Opinion is our approach on the basic requisites/justiciability
issues. The Decision apparently glossed over this aspect of the
case, while I fully explained why the De Castro4 and Peralta5
petitions should be dismissed outright. In my view, these
petitions violated the most basic requirements of their chosen
medium for review a petition for certiorari and mandamus
under Rule 65 of the Rules of Court.
The petitions commonly failed to allege that the Judicial and Bar
Council (JBC) performs judicial or quasi-judicial functions, an
allegation that the petitions could not really make, since the JBC
does not really undertake these functions and, for this reason,
cannot be the subject of a petition for certiorari; hence, the
petitions should be dismissed outright. They likewise failed to
facially show any failure or refusal by the JBC to undertake a
constitutional duty to justify the issuance of a writ of mandamus;
they invoked judicial notice that we could not give because there
was, and is, no JBC refusal to act.6 Thus, the mandamus aspects
of these petitions should have also been dismissed outright. The
ponencia, unfortunately, failed to fully discuss these legal
infirmities.
The motions for reconsideration lay major emphasis on the
alleged lack of an actual case or controversy that made the Chief
Justices appointment a justiciable issue. They claim that the
Court cannot exercise the power of judicial review where there
is no clash of legal rights and interests or where this clash is
merely anticipated, although the anticipated event shall come
with certainty.7
What the movants apparently forgot, focused as they were on
their respective petitions, is that the present case is not a single-
petition case that rises or falls on the strength of that single
petition. The present case involves various petitions and
interventions,8 not necessarily pulling towards the same
direction, although each one is focused on the issue of whether
the election appointment ban under Article VII, Section 15 of
the Constitution should apply to the appointment of the next
Chief Justice of the Supreme Court.
Among the petitions filed were those of Tolentino (G.R. No.
191342), Soriano (G.R. No. 191032) and Mendoza (A.M. No. 10-
2-5-SC). The first two are petitions for prohibition under Section
2 of Rule 65 of the Rules of Court.9 While they commonly share
this medium of review, they differ in their supporting reasons.
The Mendoza petition, on the other hand, is totally different it
is a petition presented as an administrative matter (A.M.) in the
manner that the Valenzuela case was an A.M. case. As I pointed
out in the Separate Opinion, the Court uses the A.M. docket
designation on matters relating to its exercise of supervision
over all courts and their personnel.10 I failed to note then, but I
make of record now, that court rules and regulations the
outputs in the Courts rulemaking function are also docketed
as A.M. cases.
That an actual case or controversy involving a clash of rights
and interests exists is immediately and patently obvious in the
Tolentino and Soriano petitions. At the time the petitions were
filed, the JBC had started its six-phase nomination process that
would culminate in the submission of a list of nominees to the
President of the Philippines for appointive action. Tolentino and
Soriano lawyers and citizens with interest in the strict
observance of the election ban sought to prohibit the JBC from
continuing with this process. The JBC had started to act, without
any prodding from the Court, because of its duty to start the
nomination process but was hampered by the petitions filed and
the legal questions raised that only the Supreme Court can settle
with finality.11 Thus, a clash of interests based on law existed
between the petitioners and the JBC. To state the obvious, a
decision in favor of Tolentino or Soriano would result in a writ
of prohibition that would direct the JBC not to proceed with the
nomination process.
The Mendoza petition cited the effect of a complete election ban
on judicial appointments (in view of the already high level of
vacancies and the backlog of cases) as basis, and submitted the
question as an administrative matter that the Court, in the
exercise of its supervisory authority over the Judiciary and the
JBC itself, should act upon. At the same time, it cited the "public
discourse and controversy" now taking place because of the
application of the election ban on the appointment of the Chief
Justice, pointing in this regard to the very same reasons
mentioned in Valenzuela about the need to resolve the issue and
avoid the recurrence of conflict between the Executive and the
Judiciary, and the need to "avoid polemics concerning the
matter."12
I recognized in the Separate Opinion that, unlike in Valenzuela
where an outright defiance of the election ban took place, no
such obvious triggering event transpired in the Mendoza
petition.13 Rather, the Mendoza petition looked to the
supervisory power of the Court over judicial personnel and over
the JBC as basis to secure a resolution of the election ban issue.
The JBC, at that time, had indicated its intent to look up to the
Courts supervisory power and role as the final interpreter of the
Constitution to guide it in responding to the challenges it
confronts.14 To me, this was "a point no less critical, from the
point of view of supervision, than the appointment of the two
judges during the election ban period in Valenzuela."15
In making this conclusion, I pointed out in my Separate Opinion
the unavoidable surrounding realities evident from the
confluence of events, namely: (1) an election to be held on May
10, 2010; (2) the retirement of the Chief Justice on May 17,
2010; (3) the lapse of the terms of the elective officials from the
President to the congressmen on June 30, 2010; (4) the delay
before the Congress can organize and send its JBC
representatives; and (5) the expiration of the term of a non-
elective JBC member in July 2010.16 All these juxtaposed with
the Courts supervision over the JBC, the latters need for
guidance, and the existence of an actual controversy on the
same issues bedeviling the JBC in my view, were sufficient to
save the Mendoza petition from being a mere request for opinion
or a petition for declaratory relief that falls under the jurisdiction
of the lower court. This recognition is beyond the level of what
this Court can do in handling a moot and academic case
usually, one that no longer presents a judiciable controversy but
one that can still be ruled upon at the discretion of the court
when the constitutional issue is of paramount public interest and
controlling principles are needed to guide the bench, the bar and
the public.17
To be sure, this approach in recognizing when a petition is
actionable is novel. An overriding reason for this approach can
be traced to the nature of the petition, as it rests on the Courts
supervisory authority and relates to the exercise of the Courts
administrative rather than its judicial functions (other than these
two functions, the Court also has its rulemaking function under
Article VIII, Section 5(5) of the Constitution). Strictly speaking,
the Mendoza petition calls for directions from the Court in the
exercise of its power of supervision over the JBC,18 not on the
basis of the power of judicial review.19 In this sense, it does not
need the actual clash of interests of the type that a judicial
adjudication requires. All that must be shown is the active need
for supervision to justify the Courts intervention as supervising
authority.
Under these circumstances, the Courts recognition of the
Mendoza petition was not an undue stretch of its constitutional
powers. If the recognition is unusual at all, it is so only because
of its novelty; to my knowledge, this is the first time ever in
Philippine jurisprudence that the supervisory authority of the
Court over an attached agency has been highlighted in this
manner. Novelty, per se, however, is not a ground for objection
nor a mark of infirmity for as long as the novel move is founded
in law. In this case, as in the case of the writ of amparo and
habeas data that were then novel and avowedly activist in
character, sufficient legal basis exists to actively invoke the
Courts supervisory authority granted under the Constitution,
no less as basis for action.
To partly quote the wording of the Constitution, Article VIII,
Section 8(1) and (5) provide that "A Judicial and Bar Council is
hereby created under the supervision of the Supreme Court It
may exercise such other functions and duties as the Supreme
Court may assign to it." Supervision, as a legal concept, more
often than not, is defined in relation with the concept of
control.20 In Social Justice Society v. Atienza,21 we defined
"supervision" as follows:
[Supervision] means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If
the latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform their
duties. Control, on the other hand, means the power of an
officer to alter or modify or nullify or set aside what a
subordinate officer ha[s] done in the performance of his duties
and to substitute the judgment of the former for that of the
latter.
Under this definition, the Court cannot dictate on the JBC the
results of its assigned task, i.e., who to recommend or what
standards to use to determine who to recommend. It cannot
even direct the JBC on how and when to do its duty, but it can,
under its power of supervision, direct the JBC to "take such
action or step as prescribed by law to make them perform their
duties," if the duties are not being performed because of JBCs
fault or inaction, or because of extraneous factors affecting
performance. Note in this regard that, constitutionally, the Court
can also assign the JBC other functions and duties a power
that suggests authority beyond what is purely supervisory.
Where the JBC itself is at a loss on how to proceed in light of
disputed constitutional provisions that require interpretation,22
the Court is not legally out of line as the final authority on the
interpretation of the Constitution and as the entity
constitutionally-tasked to supervise the JBC in exercising its
oversight function by clarifying the interpretation of the disputed
constitutional provision to guide the JBC. In doing this, the Court
is not simply rendering a general legal advisory; it is providing
concrete and specific legal guidance to the JBC in the exercise
of its supervisory authority, after the latter has asked for
assistance in this regard. That the Court does this while
concretely resolving actual controversies (the Tolentino and
Soriano petitions) on the same issue immeasurably strengthens
the intrinsic correctness of the Courts action.
It may be asked: why does the Court have to recognize the
Mendoza petition when it can resolve the conflict between
Article VII, Section 15 and Article VIII, Section 4(1) through the
Tolentino and Soriano petitions?
The answer is fairly simple and can be read between the lines
of the above explanation on the relationship between the Court
and the JBC. First, administrative is different from judicial
function and providing guidance to the JBC can only be
appropriate in the discharge of the Courts administrative
function. Second, the resolution of the Tolentino and Soriano
petitions will lead to rulings directly related to the underlying
facts of these petitions, without clear guidelines to the JBC on
the proper parameters to observe vis--vis the constitutional
dispute along the lines the JBC needs. In fact, concrete
guidelines addressed to the JBC in the resolution of the
Tolentino/Soriano petitions may even lead to accusations that
the Courts resolution is broader than is required by the facts of
the petitions. The Mendoza petition, because it pertains directly
to the performance of the JBCs duty and the Courts supervisory
authority, allows the issuance of precise guidelines that will
enable the JBC to fully and seasonably comply with its
constitutional mandate.
I hasten to add that the JBCs constitutional task is not as simple
as some people think it to be. The process of preparing and
submitting a list of nominees is an arduous and time-consuming
task that cannot be done overnight. It is a six-step process lined
with standards requiring the JBC to attract the best available
candidates, to examine and investigate them, to exhibit
transparency in all its actions while ensuring that these actions
conform to constitutional and statutory standards (such as the
election ban on appointments), to submit the required list of
nominees on time, and to ensure as well that all these acts are
politically neutral. On the time element, the JBC list for the
Supreme Court has to be submitted on or before the vacancy
occurs given the 90-day deadline that the appointing President
is given in making the appointment. The list will be submitted,
not to the President as an outgoing President, nor to the election
winner as an incoming President, but to the President of the
Philippines whoever he or she may be. If the incumbent
President does not act on the JBC list within the time left in her
term, the same list shall be available to the new President for
him to act upon. In all these, the Supreme Court bears the
burden of overseeing that the JBCs duty is done, unerringly and
with utmost dispatch; the Court cannot undertake this
supervision in a manner consistent with the Constitutions
expectation from the JBC unless it adopts a pro-active stance
within the limits of its supervisory authority.
The Disputed Provisions
The movants present their arguments on the main issue at
several levels. Some argue that the disputed constitutional
provisions Article VII, Section 15 and Article VIII, Section 4(1)
are clear and speak for themselves on what the Constitution
covers in banning appointments during the election period.23
One even posits that there is no conflict because both provisions
can be given effect without one detracting against the full
effectiveness of the other,24 although the effect is to deny the
sitting President the option to appoint in favor of a deferment
for the incoming Presidents action. Still others, repeating their
original arguments, appeal to the principles of interpretation and
latin maxims to prove their point.25
In my discussions in the Separate Opinion, I stated upfront my
views on how the disputed provisions interact with each other.
Read singly and in isolation, they appear clear (this reading
applies the "plain meaning rule" that Tolentino advocates in his
motion for reconsideration, as explained below). Arrayed side by
side with each other and considered in relation with the other
provisions of the Constitution, particularly its structure and
underlying intents, the conflict however becomes obvious and
unavoidable.
Section 15 on its face disallows any appointment in clear
negative terms ("shall not make") without specifying the
appointments covered by the prohibition.26 From this literal and
isolated reading springs the argument that no exception is
provided (except that found in Section 15 itself) so that even
the Judiciary is covered by the ban on appointments.
On the other hand, Section 4(1) is likewise very clear and
categorical in its terms: any vacancy in the Court shall be filled
within 90 days from its occurrence.27 In the way of Section 15,
Section 4(1) is also clear and categorical and provides no
exception; the appointment refers solely to the Members of the
Supreme Court and does not mention any period that would
interrupt, hold or postpone the 90-day requirement.
From this perspective, the view that no conflict exists cannot be
seriously made, unless with the mindset that one provision
controls and the other should yield. Many of the petitions in fact
advocate this kind of reading, some of them openly stating that
the power of appointment should be reserved for the incoming
President.28 The question, however, is whether from the
viewpoint of strict law and devoid of the emotionalism and
political partisanship that permeate the present Philippine
political environment this kind of mindset can really be
adopted in reading and applying the Constitution.
In my view, this kind of mindset and the conclusion it inevitably
leads to cannot be adopted; the provisions of the Constitution
cannot be read in isolation from what the whole contains. To be
exact, the Constitution must be read and understood as a whole,
reconciling and harmonizing apparently conflicting provisions so
that all of them can be given full force and effect,29 unless the
Constitution itself expressly states otherwise.30
Not to be forgotten in reading and understanding the
Constitution are the many established underlying constitutional
principles that we have to observe and respect if we are to be
true to the Constitution. These principles among them the
principles of checks and balances and separation of powers
are not always expressly stated in the Constitution, but no one
who believes in and who has studied the Constitution can deny
that they are there and deserve utmost attention, respect, and
even priority consideration.
In establishing the structures of government, the ideal that the
Constitution seeks to achieve is one of balance among the three
great departments of government the Executive, the
Legislative and the Judiciary, with each department undertaking
its constitutionally-assigned task as a check against the exercise
of power by the others, while all three departments move
forward in working for the progress of the nation. Thus, the
Legislature makes the laws and is supreme in this regard, in the
way that the Executive is supreme in enforcing and
administering the law, while the Judiciary interprets both the
Constitution and the law. Any provision in each of the Articles
on these three departments31 that intrudes into the other must
be closely examined if the provision affects and upsets the
desired balance.
Under the division of powers, the President as Chief Executive
is given the prerogative of making appointments, subject only
to the legal qualification standards, to the checks provided by
the Legislatures Commission on Appointments (when
applicable) and by the JBC for appointments in the Judiciary,
and to the Constitutions own limitations. Conflict comes in when
the Constitution laid down Article VII, Section 15 limiting the
Presidents appointing power during the election period. This
limitation of power would have been all-encompassing and
would, thus, have extended to all government positions the
President can fill, had the Constitution not inserted a provision,
also on appointments, in the Article on the Judiciary with respect
to appointments to the Supreme Court. This conflict gives rise
to the questions: which provision should prevail, or should both
be given effect? Or should both provisions yield to a higher
concern the need to maintain the integrity of our elections?
A holistic reading of the Constitution a must in constitutional
interpretation dictates as a general rule that the tasks assigned
to each department and their limitations should be given full
effect to fulfill the constitutional purposes under the check and
balance principle, unless the Constitution itself expressly
indicates its preference for one task, concern or standard over
the others,32 or unless this Court, in its role as interpreter of the
Constitution, has spoken on the appropriate interpretation that
should be made.33
In considering the interests of the Executive and the Judiciary,
a holistic approach starts from the premise that the
constitutional scheme is to grant the President the power of
appointment, subject to the limitation provided under Article VII,
Section 15. At the same time, the Judiciary is assured, without
qualifications under Article VIII, Section 4(1), of the immediate
appointment of Members of the Supreme Court, i.e., within 90
days from the occurrence of the vacancy. If both provisions
would be allowed to take effect, as I believe they should, the
limitation on the appointment power of the President under
Article VII, Section 15 should itself be limited by the
appointment of Members of the Court pursuant to Article VIII,
Section 4(1), so that the provision applicable to the Judiciary can
be given full effect without detriment to the Presidents
appointing authority. This harmonization will result in restoring
to the President the full authority to appoint Members of the
Supreme Court pursuant to the combined operation of Article
VII, Section 15 and Article VIII, Section 4(1).
Viewed in this light, there is essentially no conflict, in terms of
the authority to appoint, between the Executive and Judiciary;
the President would effectively be allowed to exercise the
Executives traditional presidential power of appointment while
respecting the Judiciarys own prerogative. In other words, the
President retains full powers to appoint Members of the Court
during the election period, and the Judiciary is assured of a full
membership within the time frame given.
Interestingly, the objection to the full application of Article VIII,
Section 4(1) comes, not from the current President, but mainly
from petitioners echoing the present presidential candidates,
one of whom shall soon be the incoming President. They do not,
of course, cite reasons of power and the loss of the opportunity
to appoint the Chief Justice; many of the petitioners/intervenors
oppose the full application of Article VIII, Section 4(1) based on
the need to maintain the integrity of the elections through the
avoidance of a "midnight appointment."
This "integrity" reason is a given in a democracy and can hardly
be opposed on the theoretical plane, as the integrity of the
elections must indeed prevail in a true democracy. The
statement, however, begs a lot of questions, among them the
question of whether the appointment of a full Court under the
terms of Article VIII, Section 4(1) will adversely affect or
enhance the integrity of the elections.
In my Separate Opinion, I concluded that the appointment of a
Member of the Court even during the election period per se
implies no adverse effect on the integrity of the election; a full
Court is ideal during this period in light of the Courts unique role
during elections. I maintain this view and fully concur in this
regard with the majority.
During the election period, the court is not only the interpreter
of the Constitution and the election laws; other than the
Commission on Elections and the lower courts to a limited
extent, the Court is likewise the highest impartial recourse
available to decisively address any problem or dispute arising
from the election. It is the leader and the highest court in the
Judiciary, the only one of the three departments of government
directly unaffected by the election. The Court is likewise the
entity entrusted by the Constitution, no less, with the gravest
election-related responsibilities. In particular, it is the sole judge
of all contests in the election of the President and the Vice-
President, with leadership and participation as well in the
election tribunals that directly address Senate and House of
Representatives electoral disputes. With this grant of
responsibilities, the Constitution itself has spoken on the trust it
reposes on the Court on election matters. This reposed trust, to
my mind, renders academic any question of whether an
appointment during the election period will adversely affect the
integrity of the elections it will not, as the maintenance of a
full Court in fact contributes to the enforcement of the
constitutional scheme to foster a free and orderly election.
In reading the motions for reconsideration against the backdrop
of the partisan political noise of the coming elections, one
cannot avoid hearing echoes from some of the arguments that
the objection is related, more than anything else, to their lack
of trust in an appointment to be made by the incumbent
President who will soon be bowing out of office. They label the
incumbent Presidents act as a "midnight appointment" a term
that has acquired a pejorative meaning in contemporary society.
As I intimated in my Separate Opinion, the imputation of distrust
can be made against any appointing authority, whether
outgoing or incoming. The incoming President himself will be
before this Court if an election contest arises; any President,
past or future, would also naturally wish favorable outcomes in
legal problems that the Court would resolve. These possibilities
and the potential for continuing influence in the Court, however,
cannot be active considerations in resolving the election ban
issue as they are, in their present form and presentation, all
speculative. If past record is to be the measure, the record of
past Chief Justices and of this Court speaks for itself with respect
to the Justices relationship with, and deferral to, the appointing
authority in their decisions.
What should not be forgotten in examining the records of the
Court, from the prism of problems an electoral exercise may
bring, is the Courts unique and proven capacity to intervene and
diffuse situations that are potentially explosive for the nation.
EDSA II particularly comes to mind in this regard (although it
was an event that was not rooted in election problems) as it is
a perfect example of the potential for damage to the nation that
the Court can address and has addressed. When acting in this
role, a vacancy in the Court is not only a vote less, but a
significant contribution less in the Courts deliberations and
capacity for action, especially if the missing voice is the voice of
the Chief Justice.
Be it remembered that if any EDSA-type situation arises in the
coming elections, it will be compounded by the lack of leaders
because of the lapse of the Presidents term by June 30, 2010;
by a possible failure of succession if for some reason the election
of the new leadership becomes problematic; and by the similar
absence of congressional leadership because Congress has not
yet convened to organize itself.34 In this scenario, only the
Judiciary of the three great departments of government stands
unaffected by the election and should at least therefore be
complete to enable it to discharge its constitutional role to its
fullest potential and capacity. To state the obvious, leaving the
Judiciary without any permanent leader in this scenario may
immeasurably complicate the problem, as all three departments
of government will then be leaderless.
To stress what I mentioned on this point in my Separate
Opinion, the absence of a Chief Justice will make a lot of
difference in the effectiveness of the Court as he or she heads
the Judiciary, sits as Chair of the JBC and of the Presidential
Electoral Tribunal, presides over impeachment proceedings, and
provides the moral suasion and leadership that only the
permanent mantle of the Chief Justice can bestow. EDSA II is
just one of the many lessons from the past when the weightiest
of issues were tackled and promptly resolved by the Court.
Unseen by the general public in all these was the leadership that
was there to ensure that the Court would act as one, in the spirit
of harmony and stability although divergent in their individual
views, as the Justices individually make their contributions to
the collegial result. To some, this leadership may only be
symbolic, as the Court has fully functioned in the past even with
an incomplete membership or under an Acting Chief Justice. But
as I said before, an incomplete Court "is not a whole Supreme
Court; it will only be a Court with 14 members who would act
and vote on all matters before it." To fully recall what I have
said on this matter:
The importance of the presence of one Member of the Court can
and should never be underestimated, particularly on issues that
may gravely affect the nation. Many a case has been won or lost
on the basis of one vote. On an issue of the constitutionality of
a law, treaty or statute, a tie vote which is possible in a 14
member court means that the constitutionality is upheld. This
was our lesson in Isagani Cruz v. DENR Secretary.
More than the vote, Court deliberation is the core of the
decision-making process and one voice is less is not only a vote
less but a contributed opinion, an observation, or a cautionary
word less for the Court. One voice can be a big difference if the
missing voice is that of the Chief Justice.
Without meaning to demean the capability of an Acting Chief
Justice, the ascendancy in the Court of a permanent sitting Chief
Justice cannot be equaled. He is the first among equals a
primus inter pares who sets the tone for the Court and the
Judiciary, and who is looked up to on all matters, whether
administrative or judicial. To the world outside the Judiciary, he
is the personification of the Court and the whole Judiciary. And
this is not surprising since, as Chief Justice, he not only chairs
the Court en banc, but chairs as well the Presidential Electoral
Tribunal that sits in judgment over election disputes affecting
the President and the Vice-President. Outside of his immediate
Court duties, he sits as Chair of the Judicial and Bar Council, the
Philippine Judicial Academy and, by constitutional command,
presides over the impeachment of the President. To be sure, the
Acting Chief Justice may be the ablest, but he is not the Chief
Justice without the mantle and permanent title of the Office, and
even his presence as Acting Chief Justice leaves the Court with
one member less. Sadly, this member is the Chief Justice; even
with an Acting Chief Justice, the Judiciary and the Court remains
headless. 35
Given these views, I see no point in re-discussing the finer points
of technical interpretation and their supporting latin maxims that
I have addressed in my Separate Opinion and now feel need no
further elaboration; maxims can be found to serve a pleaders
every need and in any case are the last interpretative tools in
constitutional interpretation. Nor do I see any point in discussing
arguments based on the intent of the framers of the Constitution
now cited by the parties in the contexts that would serve their
own ends. As may be evident in these discussions, other than
the texts of the disputed provisions, I prefer to examine their
purposes and the consequences of their application, understood
within the context of democratic values. Past precedents are
equally invaluable for the lead, order, and stability they
contribute, but only if they are in point, certain, and still alive to
current realities, while the history of provisions, including the
intents behind them, are primarily important to ascertain the
purposes the provisions serve.
From these perspectives and without denigrating the framers
historical contributions, I say that it is the Constitution that now
primarily speaks to us in this case and what we hear are its
direct words, not merely the recorded isolated debates reflecting
the personal intents of the constitutional commissioners as cited
by the parties to fit their respective theories. The voice speaking
the words of the Constitution is our best guide, as these words
will unalterably be there for us to read in the context of their
purposes and the nations needs and circumstances. This
Concurring and Dissenting Opinion hears and listens to that
voice.
The Valenzuela Decision
The ponencias ruling reversing Valenzuela, in my view, is out of
place in the present case, since at issue here is the appointment
of the Chief Justice during the period of the election ban, not
the appointment of lower court judges that Valenzuela resolved.
To be perfectly clear, the conflict in the constitutional provisions
is not confined to Article VII, Section 15 and Article VIII, Section
4(1) with respect to the appointment of Members of the
Supreme Court; even before the Valenzuela ruling, the conflict
already existed between Article VII, Section 15 and Article VIII,
Section 9 the provision on the appointment of the justices and
judges of courts lower than the Supreme Court. After this Courts
ruling in Valenzuela, no amount of hairsplitting can result in the
conclusion that Article VII, Section 15 applied the election ban
over the whole Judiciary, including the Supreme Court, as the
facts and the fallo of Valenzuela plainly spoke of the
objectionable appointment of two Regional Trial Court judges.
To reiterate, Valenzuela only resolved the conflict between
Article VII, Section 15 and appointments to the Judiciary under
Article VIII, Section 9.
If Valenzuela did prominently figure at all in the present case,
the prominence can be attributed to the petitioners mistaken
reading that this case is primary authority for the dictum that
Article VII, Section 15 completely bans all appointments to the
Judiciary, including appointments to the Supreme Court, during
the election period up to the end of the incumbent Presidents
term.
In reality, this mistaken reading is an obiter dictum in
Valenzuela, and hence, cannot be cited for its primary
precedential value. This legal situation still holds true as
Valenzuela was not doctrinally reversed as its proposed reversal
was supported only by five (5) out of the 12 participating
Members of the Court. In other words, this ruling on how Article
VII, Section 15 is to be interpreted in relation with Article VIII,
Section 9, should continue to stand unless otherwise expressly
reversed by this Court.
But separately from the mistaken use of an obiter ruling as
primary authority, I believe that I should sound the alarm bell
about the Valenzuela ruling in light of a recent vacancy in the
position of Presiding Justice of the Sandiganbayan resulting from
Presiding Justice Norberto Geraldezs death soon after we issued
the decision in the present case. Reversing the Valenzuela ruling
now, in the absence of a properly filed case addressing an
appointment at this time to the Sandiganbayan or to any other
vacancy in the lower courts, will be an irregular ruling of the first
magnitude by this Court, as it will effectively be a shortcut that
lifts the election ban on appointments to the lower courts
without the benefit of a case whose facts and arguments would
directly confront the continued validity of the Valenzuela ruling.
This is especially so after we have placed the Court on notice
that a reversal of Valenzuela is uncalled for because its ruling is
not the litigated issue in this case.
In any case, let me repeat what I stressed in my Separate
Opinion about Valenzuela which rests on the reasoning that the
evils Section 15 seeks to remedy vote buying, midnight
appointments and partisan reasons to influence the elections
exist, thus justifying an election appointment ban. In particular,
the "midnight appointment" justification, while fully applicable
to the more numerous vacancies at the lower echelons of the
Judiciary (with an alleged current lower court vacancy level of
537 or a 24.5% vacancy rate), should not apply to the Supreme
Court which has only a total of 15 positions that are not even
vacated at the same time. The most number of vacancies for
any one year occurred only last year (2009) when seven (7)
positions were vacated by retirement, but this vacancy rate is
not expected to be replicated at any time within the next
decade. Thus "midnight appointments" to the extent that they
were understood in Aytona36 will not occur in the vacancies of
this Court as nominations to its vacancies are all processed
through the JBC under the publics close scrutiny. As already
discussed above, the institutional integrity of the Court is hardly
an issue. If at all, only objections personal to the individual
Members of the Court or against the individual applicants can
be made, but these are matters addressed in the first place by
the JBC before nominees are submitted. There, too, are specific
reasons, likewise discussed above, explaining why the election
ban should not apply to the Supreme Court. These exempting
reasons, of course, have yet to be shown to apply to the lower
courts. Thus, on the whole, the reasons justifying the election
ban in Valenzuela still obtain in so far as the lower courts are
concerned, and have yet to be proven otherwise in a properly
filed case. Until then, Valenzuela, except to the extent that it
mentioned Section 4(1), should remain an authoritative ruling
of this Court.
CONCLUSION
In light of these considerations, a writ of prohibition cannot issue
to prevent the JBC from performing its principal function, under
the Constitution, of recommending nominees for the position of
Chief Justice. Thus, I vote to deny with finality the Tolentino and
Soriano motions for reconsideration.
The other motions for reconsideration in so far as they challenge
the conclusion that the President can appoint the Chief Justice
even during the election period are likewise denied with finality
for lack of merit, but are granted in so far as they support the
continued validity of the ruling of this Court in In Re: Valenzuela
and Vallarta, A.M. No. 98-5-01-SC, November 9, 1998.
My opinion on the Mendoza petition stands.
ARTURO D. BRION
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 156556-57 October 4, 2011
ENRIQUE U. BETOY, Petitioner,
vs.
THE BOARD OF DIRECTORS, NATIONAL POWER
CORPORATION, Respondent.
DECISION
PERALTA, J.:
Before this Court is a special civil action for certiorari1 and
supplemental petition for mandamus,2 specifically assailing
National Power Board Resolutions No. 2002-124 and No. 2002-
125, as well as Sections 11, 34, 38, 48, 52 and 63 of Republic
Act (R.A.) No. 9136, otherwise known as the Electric Power
Industry Reform Act of 2001 (EPIRA). Also assailed is Rule 33 of
the Implementing Rules and Regulations (IRR) of the EPIRA.
The facts of the case are as follows:
On June 8, 2001, the EPIRA was enacted by Congress with the
goal of restructuring the electric power industry and
privatization of the assets of the National Power Corporation
(NPC).
Pursuant to Section 483 of the EPIRA, a new National Power
Board of Directors (NPB) was created. On February 27, 2002,
pursuant to Section 774 of the EPIRA, the Secretary of the
Department of Energy promulgated the IRR.
On the other hand, Section 63 of the EPIRA provides for
separation benefits to officials and employees who would be
affected by the restructuring of the electric power industry and
the privatization of the assets of the NPC, to wit:
Section 63. Separation Benefits of Officials and Employees of
Affected Agencies. - National Government employees
displaced or separated from the service as a result of the
restructuring of the electricity industry and privatization
of NPC assets pursuant to this Act, shall be entitled to
either a separation pay and other benefits in accordance
with existing laws, rules or regulations or be entitled to
avail of the privileges provided under a separation plan
which shall be one and one-half month salary for every
year of service in the government: Provided, however, That
those who avail of such privileges shall start their government
service anew if absorbed by any government-owned successor
company. In no case shall there be any diminution of benefits
under the separation plan until the full implementation of the
restructuring and privatization.
Displaced or separated personnel as a result of the privatization,
if qualified, shall be given preference in the hiring of the
manpower requirements of the privatized companies. x x x5
Rule 336 of the IRR provided for the coverage and the guidelines
for
the separation benefits to be given to the employees affected.
On November 18, 2002, pursuant to Section 63 of the EPIRA
and Rule 33 of the IRR, the NPB passed NPB Resolution No.
2002-1247 which, among others, resolved that all NPC personnel
shall be legally terminated on January 31, 2003 and shall be
entitled to separation benefits. On the same day, the NPB
passed NPB Resolution No. 2002-1258 which created a transition
team to manage and implement the separation program.
As a result of the foregoing NPB Resolutions, petitioner Enrique
U. Betoy, together with thousands of his co-employees from the
NPC were terminated.
Hence, herein petition for certiorari with petitioner praying for
the grant of the following reliefs from this Court, to wit:
1. Declaring National Power Board Resolution Nos. 2002-124
and 2002-125 and its Annex "B" Null and Void, the fact [that] it
was done with extraordinary haste and in secrecy without the
able participation of the Napocor Employees Consolidated Union
(NECU) to represent all career civil service employees on issues
affecting their rights to due process, equity, security of tenure,
social benefits accrued to them, and as well as the disclosure of
public transaction provisions of the 1987 Constitution because
during its proceeding the National Power Board had acted with
grave abuse of discretion and disregarding constitutional and
statutory injunctions on removal of public servants and non-
diminution of social benefits accrued to separated employees,
thus, amounting to excess of jurisdiction;
2. Striking down Section 11, Section 48 and Section 52 of RA
9136 (EPIRA) for being violative of Section 13, Article VII of the
1987 Constitution and, therefore, unconstitutional;
3. Striking Section 34 of RA 9136 (EPIRA) for being exorbitant
display of State Power and was not premised on the welfare of
the FILIPINO PEOPLE or principle of salus populi est
suprema lex;
4. Striking down Section 38 for RA 9136 (EPIRA) for being a
prelude to Charter Change without a valid referendum for
ratification of the entire voter citizens of the Philippine Republic;
5. Striking down all other provisions of RA 9136 (EPIRA) found
repugnant to the 1987 Constitution;
6. Striking down all provisions of the Implementing Rules and
Regulations (IRR) of the EPIRA found repugnant to the 1987
Constitution;
7. Striking down Section 63 of RA 9136 (EPIRA) for classifying
such provisions in the same vein with Proclamation No. 50 used
against MWSS employees and its failure to classify which
condition comes first whether the restructuring effecting total
reorganization of the electric power industry making NPC
financially viable or the privatization of NPC assets where
manpower reduction or sweeping/lay-off or termination of
career civil service employees follows the disposal of NPC assets.
This is a clear case of violation of the EQUAL PROTECTION
CLAUSE, therefore, unconstitutional;
8. Striking down Rule 33 of the Implementing Rules [and]
Regulations (IRR) for disregarding the constitutional and
statutory injunction on arbitrary removal of career civil service
employees; and
9. For such other reliefs deemed equitable with justice and
fairness to more than EIGHT THOUSAND (8,000) EMPLOYEES
of the National Power Corporation (NPC) whose fate lies in the
sound disposition of the Honorable Supreme Court.9
In addition, petitioner also filed a supplemental petition for
mandamus praying for his reinstatement.
The petition is without merit.
Before anything else, this Court shall first tackle whether it was
proper for petitioner to directly question the constitutionality of
the EPIRA before this Court.
Section 5(1) and (2), Article VIII of the 1987 Constitution
provides that:
SECTION 5. The Supreme Court shall have the following powers:
1. Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto,
and habeas corpus.
2. Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the rules of court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or
regulation is in question.10
Based on the foregoing, this Court's jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo warranto, and habeas
corpus, while concurrent with that of the Regional Trial Courts
and the Court of Appeals, does not give litigants unrestrained
freedom of choice of forum from which to seek such relief.11 The
determination of whether the assailed law and its implementing
rules and regulations contravene the Constitution is within the
jurisdiction of regular courts. The Constitution vests the power
of judicial review or the power to declare a law, treaty,
international or executive agreement, presidential decree, order,
instruction, ordinance, or regulation in the courts, including the
Regional Trial Courts.12
It has long been established that this Court will not entertain
direct resort to it unless the redress desired cannot be obtained
in the appropriate courts, or where exceptional and compelling
circumstances justify availment of a remedy within and call for
the exercise of our primary jurisdiction.13 Thus, herein petition
should already be dismissed at the outset; however, since
similar petitions have already been resolved by this Court
tackling the validity of NPB Resolutions No. 2002-124 and No.
2002-125, as well as the constitutionality of certain provisions
of the EPIRA, this Court shall disregard the procedural defect.
Validity of NPB Resolutions No. 2002-124 and No. 2002-
125
The main issue raised by petitioner deals with the validity of NPB
Resolutions No. 2002-124 and No. 2002-125.
In NPC Drivers and Mechanics Association (NPC DAMA) v.
National Power Corporation (NPC),14 this Court had already
ruled that NPB Resolutions No. 2002-124 and No. 2002-125 are
void and of no legal effect.
NPC Drivers involved a special civil action for Injunction seeking
to enjoin the implementation of the same assailed NPB
Resolutions. Petitioners therein put in issue the fact that the NPB
Resolutions were not concluded by a duly constituted Board of
Directors since no quorum in accordance with Section 48 of the
EPIRA existed. In addition, petitioners therein argued that the
assailed NPB Resolutions cannot be given legal effect as it failed
to comply with Section 47 of the EPIRA which required the
endorsement of the Joint Congressional Power Commission and
the President of the Philippines. Ruling in favor of petitioners
therein, this Court ruled that NPB Resolutions No. 2002-124 and
No. 2002-125 are void and of no legal effect for failure to comply
with Section 48 of the EPIRA, to wit:
We agree with petitioners. In enumerating under Section 48
those who shall compose the National Power Board of Directors,
the legislature has vested upon these persons the power to
exercise their judgment and discretion in running the affairs of
the NPC. Discretion may be defined as "the act or the liberty to
decide according to the principles of justice and ones ideas of
what is right and proper under the circumstances, without
willfulness or favor. Discretion, when applied to public
functionaries, means a power or right conferred upon them by
law of acting officially in certain circumstances, according to the
dictates of their own judgment and conscience, uncontrolled by
the judgment or conscience of others. It is to be presumed that
in naming the respective department heads as members of the
board of directors, the legislature chose these secretaries of the
various executive departments on the basis of their personal
qualifications and acumen which made them eligible to occupy
their present positions as department heads. Thus, the
department secretaries cannot delegate their duties as members
of the NPB, much less their power to vote and approve board
resolutions, because it is their personal judgment that must be
exercised in the fulfilment of such responsibility.
xxxx
In the case at bar, it is not difficult to comprehend that in
approving NPB Resolutions No. 2002-124 and No. 2002-125, it
is the representatives of the secretaries of the different
executive departments and not the secretaries themselves who
exercised judgment in passing the assailed Resolution, as shown
by the fact that it is the signatures of the respective
representatives that are affixed to the questioned Resolutions.
This, to our mind, violates the duty imposed upon the specifically
enumerated department heads to employ their own sound
discretion in exercising the corporate powers of the NPC.
Evidently, the votes cast by these mere representatives in favor
of the adoption of the said Resolutions must not be considered
in determining whether or not the necessary number of votes
was garnered in order that the assailed Resolutions may be
validly enacted. Hence, there being only three valid votes cast
out of the nine board members, namely those of DOE Secretary
Vincent S. Perez, Jr.; Department of Budget and Management
Secretary Emilia T. Boncodin; and NPC OIC-President Rolando
S. Quilala, NPB Resolutions No. 2002-124 and No. 2002-
125 are void and are of no legal effect.15
However, a supervening event occurred in NPC Drivers when it
was brought to this Court's attention that NPB Resolution No.
2007-55 was promulgated on September 14, 2007 confirming
and adopting the principles and guidelines enunciated in NPB
Resolutions No. 2002-124 and No. 2002-125.
On December 2, 2009, this Court promulgated a Resolution16
clarifying the amount due the individual employees of NPC in
view of NPB Resolution No. 2007-55. In said Resolution, this
Court clarified the exact date of the legal termination of each
class of NPC employees, thus:
From all these, it is clear that our ruling, pursuant to NPB
Resolution No. 2002-124, covers all employees of the NPC and
not only the 16 employees as contended by the NPC. However,
as regards their right to reinstatement, or separation pay in lieu
of reinstatement, pursuant to a validly approved Separation
Program, plus backwages, wage adjustments, and other
benefits, the same shall be computed from the date of legal
termination as stated in NPC Circular No. 2003-09, to wit:
a) The legal termination of key officials, i.e., the Corporate
Secretary, Vice-Presidents and Senior Vice-Presidents who were
appointed under NP Board Resolution No. 2003-12, shall be at
the close of office hours of January 31, 2003.
b) The legal termination of personnel who availed of the early
leavers' scheme shall be on the last day of service in NPC but
not beyond January 15, 2003.
c) The legal termination of personnel who were no longer
employed in NPC after June 26, 2001 shall be the date of actual
separation in NPC.
d) For all other NPC personnel, their legal termination shall be
at the close of office hours/shift schedule of February 28,
2003.17
As to the validity of NPB Resolution No. 2007-55, this Court ruled
that the same will have a prospective effect, to wit:
What then is the effect of the approval of NPB Resolution No.
2007-55 on 14 September 2007? The approval of NPB
Resolution No. 2007-55, supposedly by a majority of the
National Power Board as designated by law, that adopted,
confirmed and approved the contents of NPB Resolutions No.
2002-124 and No. 2002-125 will have a prospective effect, not
a retroactive effect. The approval of NPB Resolution No. 2007-
55 cannot ratify and validate NPB Resolutions No. 2002-124 and
No. 2002-125 as to make the termination of the services of all
NPC personnel/employees on 31 January 2003 valid, because
said resolutions were void.
The approval of NPB Resolution No. 2007-55 on 14 September
2007 means that the services of all NPC employees have been
legally terminated on this date. All separation pay and other
benefits to be received by said employees will be deemed cut
on this date. The computation thereof shall, therefore, be from
the date of their illegal termination pursuant to NPB Resolutions
No. 2002-124 and No. 2002-125 as clarified by NPB Resolution
No. 2003-11 and NPC Resolution No. 2003-09 up to 14
September 2007. Although the validity of NPB Resolution No.
2007-55 has not yet been passed upon by the Court, same has
to be given effect because NPB Resolution No. 2007-55 enjoys
the presumption of regularity of official acts. The presumption
of regularity of official acts may be rebutted by affirmative
evidence of irregularity or failure to perform a duty. Thus, until
and unless there is clear and convincing evidence that rebuts
this presumption, we have no option but to rule that said
resolution is valid and effective as of 14 September 2007.18
Based on the foregoing, this Court concluded that the
computation of the amounts due the employees who were
terminated and/or separated as a result of, or pursuant to, the
nullified NPB Board Resolutions No. 2002-124 and No. 2002-125
shall be from their date of illegal termination up to September
14, 2007 when NPB Resolution No. 2007-55 was issued.
Thus, the resolution of the validity of NPB Board Resolutions No.
2002-124 and No. 2002-125 is, therefore, moot and academic
in view of the Court's pronouncements in NPC Drivers.
Anent the question of the constitutionality of Section 63 of RA
9136, as well as Rule 33 of the IRR, this Court finds that the
same is without merit.
A reorganization involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions.19 It could result in the loss
of ones position through removal or abolition of an office.
However, for a reorganization for the purpose of economy or to
make the bureaucracy more efficient to be valid, it must pass
the test of good faith; otherwise, it is void ab initio.20
It is undisputed that NPC was in financial distress and the
solution found by Congress was to pursue a policy towards its
privatization. The privatization of NPC necessarily demanded the
restructuring of its operations. To carry out the purpose, there
was a need to terminate employees and re-hire some depending
on the manpower requirements of the privatized companies.
The privatization and restructuring of the NPC was, therefore,
done in good faith as its primary purpose was for economy and
to make the bureaucracy more efficient.
In Freedom from Debt Coalition v. Energy Regulatory
Commission,21 this Court discussed why there was a need for a
shift towards the privatization and restructuring of the electric
power industry, to wit:
One of the landmark pieces of legislation enacted by Congress
in recent years is the EPIRA. It established a new policy, legal
structure and regulatory framework for the electric power
industry.
The new thrust is to tap private capital for the expansion and
improvement of the industry as the large government debt and
the highly capital-intensive character of the industry itself have
long been acknowledged as the critical constraints to the
program. To attract private investment, largely foreign, the
jaded structure of the industry had to be addressed. While the
generation and transmission sectors were centralized and
monopolistic, the distribution side was fragmented with over
130 utilities, mostly small and uneconomic. The pervasive flaws
have caused a low utilization of existing generation capacity;
extremely high and uncompetitive power rates; poor quality of
service to consumers; dismal to forgettable performance of the
government power sector; high system losses; and an inability
to develop a clear strategy for overcoming these shortcomings.
Thus, the EPIRA provides a framework for the restructuring of
the industry, including the privatization of the assets of the
National Power Corporation (NPC), the transition to a
competitive structure, and the delineation of the roles of various
government agencies and the private entities. The law ordains
the division of the industry into four (4) distinct sectors, namely:
generation, transmission, distribution and supply. Corollarily,
the NPC generating plants have to be privatized and its
transmission business spun off and privatized thereafter.22
Petitioner argues that bad faith is clearly manifested as the
reorganization has an eye to replace current favorite less
competent appointees. In addition, petitioner contends that
qualifications and behavioral aspect were being set aside.23
Section 2 of R.A. No. 665624 cites certain circumstances showing
bad faith in the removal of employees as a result of any
reorganization, thus:
Sec. 2. No officer or employee in the career service shall be
removed except for a valid cause and after due notice and
hearing. A valid cause for removal exist when, pursuant to a
bona fide reorganization, a position has been abolished or
rendered redundant or there is a need to merge, divide, or
consolidate positions in order to meet the exigencies of the
service, or other lawful causes allowed by the Civil Service Law.
The existence of any or some of the following circumstances
may be considered as evidence of bad faith in the removals
made as a result of the reorganization, giving rise to a claim for
reinstatement or reappointment by an aggrieved party:
a) Where there is a significant increase in the number of
positions in the new staffing pattern of the department or
agency concerned;
b) Where an office is abolished and another performing
substantially the same functions is created;
c) Where incumbents are replaced by those less qualified in
terms of status of appointment, performance and merit;
d) Where there is a reclassification of offices in the department
or agency concerned and the reclassified offices perform
substantially the same functions as the original offices; and
e) Where the removal violates the order of separation provided
in Section 3 hereof.
The Solicitor General, however, argues that petitioner has not
shown any circumstance to prove that the restructuring of NPC
was done in bad faith. We agree.
Petitioner's allegation that the reorganization was merely
undertaken to accommodate new appointees is at most
speculative and bereft of any evidence on record. It is settled
that bad faith must be duly proved and not merely presumed. It
must be proved by clear and convincing evidence,25 which is
absent in the case at bar.
In addition, petitioner has no legal or vested right to be
reinstated as Section 63 of the EPIRA as well as Section 5, Rule
33 of the IRR clearly state that the displaced or separated
personnel as a result of the privatization, if qualified, shall be
given preference in the hiring of the manpower requirements of
the privatized companies. Clearly, the law only speaks of
preference and by no stretch of the imagination can the same
amount to a legal right to the position. Undoubtedly, not all the
terminated employees will be re-hired by the selection
committee as the manpower requirement of the privatized
companies will be different. As correctly observed by the
Solicitor General, the selection of employees for purposes of re-
hiring them necessarily entails the exercise of discretion or
judgment.26Such being the case, petitioner, cannot, by way of
mandamus, compel the selection committee to include him in
the re-hired employees, more so, since there is no evidence
showing that said committee acted with grave abuse of
discretion or that the re-hired employees were merely
accommodated and not qualified.
Validity of Sections 11, 48, and 52 of RA 9136
Petitioner argues that Sections 11,27 48,28 and 5229 of the EPIRA
are unconstitutional for violating Section 13, Article VII of the
1987 Constitution.
Section 13, Article VII of the 1987 Constitution provides:
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.
x x x x.30
In Civil Liberties Union v. Executive Secretary,31 this Court
explained that the prohibition contained in Section 13, Article
VII of the 1987 Constitution does not apply 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 function of said official's office, to
wit:
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 not comprise "any other office"
within the contemplation of the constitutional prohibition but are
properly an imposition of additional duties and functions on said
officials. 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 Defence, 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.
xxxx
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. 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 and the Civil Aeronautics Board.32
The designation of the members of the Cabinet to form the NPB
does not violate the prohibition contained in our Constitution as
the privatization and restructuring of the electric power industry
involves the close coordination and policy determination of
various government agencies. Section 2 of the EPIRA clearly
shows that the policy toward privatization would involve
financial, budgetary and environmental concerns as well as
coordination with local government units, to wit:
SECTION 2. Declaration of Policy. It is hereby declared the
policy of the State:
(a) To ensure and accelerate the total electrification of the
country;
(b) To ensure the quality, reliability, security and affordability of
the supply of electric power;
(c) To ensure transparent and reasonable prices of electricity in
a regime of free and fair competition and full public
accountability to achieve greater operational and economic
efficiency and enhance the competitiveness of Philippine
products in the global market;
(d) To enhance the inflow of private capital and broaden the
ownership base of the power generation, transmission and
distribution sectors;
(e) To ensure fair and non-discriminatory treatment of public
and private sector entities
in the process of restructuring the electric power industry;
(f) To protect the public interest as it is affected by the rates
and services of electric utilities and other providers of electric
power;
(g) To assure socially and environmentally compatible energy
sources and infrastructure;
(h) To promote the utilization of indigenous and new and
renewable energy resources in power generation in order to
reduce dependence on imported energy;
(i) To provide for an orderly and transparent privatization of the
assets and liabilities of the National Power Corporation (NPC);
(j) To establish a strong and purely independent regulatory body
and system to ensure consumer protection and enhance the
competitive operation of the electricity market; and
(k) To encourage the efficient use of energy and other
modalities of demand side management.
As can be gleaned from the foregoing enumeration, the
restructuring of the electric power industry inherently involves
the participation of various government agencies. In Civil
Liberties, this Court explained that mandating additional duties
and functions to Cabinet members 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.33
The production and supply of energy is undoubtedly one of
national interest and is a basic commodity expected by the
people. This Court, therefore, finds the designation of the
respective members of the Cabinet, as ex-officiomembers of the
NPB, valid.
This Court is not unmindful, however, that Section 48 of the
EPIRA is not categorical in proclaiming that the concerned
Cabinet secretaries compose the NPB Board only in an ex-officio
capacity. It is only in Section 52 creating the Power Sector
Assets and Liabilities Management Corporation (PSALM) that
they are so designated in an ex-officio capacity. Sections 4 and
6 of the EPIRA provides:
Section 4. TRANSCO Board of Directors.
All the powers of the TRANSCO shall be vested in and exercised
by a Board of Directors. The Board shall be composed of a
Chairman and six (6) members. The Secretary of the DOF shall
be the ex-officio Chairman of the Board. The other members of
the TRANSCO Board shall include the Secretary of the DOE, the
Secretary of the DENR, the President of TRANSCO, and three
(3) members to be appointed by the President of the Philippines,
each representing Luzon, Visayas and Mindanao, one of whom
shall be the President of PSALM.
x x x x.
Section 6. PSALM Board of Directors.
PSALM shall be administered, and its powers and functions
exercised, by a Board of Directors which shall be composed of
the Secretary of the DOF as the Chairman, and the Secretary of
the DOE, the Secretary of the DBM, the Director-General of the
NEDA, the Secretary of the DOJ, the Secretary of the DTI and
the President of the PSALM as ex-officio members thereof.
Nonetheless, this Court agrees with the contention of the
Solicitor General that the constitutional prohibition was not
violated, considering that the concerned Cabinet secretaries
were merely imposed additional duties and their posts in the
NPB do not constitute "any other office" within the
contemplation of the constitutional prohibition.
The delegation of the said official to the respective Board of
Directors were designation by Congress of additional functions
and duties to the officials concerned, i.e., they were designated
as members of the Board of Directors. Designation connotes an
imposition of additional duties, usually by law, upon a person
already in the public service by virtue of an earlier
appointment.34 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, and not a mere
designation.35
Hence, Congress specifically intended that the position of
member of the Board of NPB shall be ex-officio or automatically
attached to the respective offices of the members composing
the board. It is clear from the wordings of the law that it was
the intention of Congress that the subject posts will be adjunct
to the respective offices of the official designated to such posts.
The foregoing discussion, notwithstanding, the concerned
officials should not receive any additional compensation
pursuant to their designation as ruled in Civil Liberties, thus:
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 diem 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.
In relation thereto, Section 14 of the EPIRA provides:
SEC. 14. Board Per Diems and Allowances. The members of
the Board shall receive per diem for each regular or special
meeting of the board actually attended by them and, upon
approval of the Secretary of the Department of Finance, such
other allowances as the Board may prescribe.
Section 14 relates to Section 11 which sets the composition of
the TRANSCO Board naming the Secretary of the Department of
Finance as the ex officio Chairman of the Board. The other
members of the TRANSCO Board include the Secretary of the
Department of Energy and the Secretary of the Department of
Environment and Natural Resources. However, considering the
constitutional prohibition, it is clear that such emoluments or
additional compensation to be received by the members of the
NPB do not apply and should not be received by those covered
by the constitutional prohibition, i.e., the Cabinet secretaries. It
is to be noted that three of the members of the NPB are to be
appointed by the President, who would be representing the
interests of those in Luzon, Visayas, and Mindanao, who may be
entitled to such honorarium or allowance if they do not fall
within the constitutional prohibition.
Hence, the said cabinet officials cannot receive any form of
additional compensation by way of per diems and allowances.
Moreover, any amount received by them in their capacity as
members of the Board of Directors should be reimbursed to the
government, since they are prohibited from collecting additional
compensation by the Constitution.
These interpretations are consistent with the fundamental rule
of statutory construction that a statute is to be read in a manner
that would breathe life into it, rather than defeat it,36 and is
supported by the criteria in cases of this nature that all
reasonable doubts should be resolved in favor of the
constitutionality of a statute.37
Constitutionality of Section 3438 of the EPIRA
The Constitutionality of Section 34 of the EPIRA has already
been passed upon by this Court in Gerochi v. Department of
Energy,39 to wit:
Finally, every law has in its favor the presumption of
constitutionality, and to justify its nullification, there must be a
clear and unequivocal breach of the Constitution and not one
that is doubtful, speculative, or argumentative. Indubitably,
petitioners failed to overcome this presumption in favor of the
EPIRA. We find no clear violation of the Constitution which
would warrant a pronouncement that Sec. 34 of the EPIRA and
Rule 18 of its IRR are unconstitutional and void.40
In Gerochi, this Court ruled that the Universal Charge is not a
tax but an exaction in the exercise of the State's police power.
The Universal Charge is imposed to ensure the viability of the
country's electric power industry.
Petitioner argues that the imposition of a universal charge to
address the stranded debts and contract made by the
government through the NCC-IPP contracts or Power Utility-IPP
contracts or simply the bilateral agreements or contracts is an
added burden to the electricity-consuming public on their
monthly power bills. It would mean that the electricity-
consuming public will suffer in carrying this burden for the errors
committed by those in power who runs the affairs of the State.
This is an exorbitant display of State Power at the expense of its
people.41
It is basic that the determination of whether or not a tax is
excessive oppressive or confiscatory is an issue which essentially
involves a question of fact and, thus, this Court is precluded
from reviewing the same.
Validity of Section 3842 of the EPIRA
Petitioner argues that the abolishment of the ERB and its
replacement of a very powerful quasi-judicial body named the
Energy Regulatory Commission (ERC), pursuant to Section 38
up to Section 43 of the EPIRA or RA 9136, which is tasked to
dictate the day-to-day affairs of the entire electric power
industry, seems a prelude to Charter Change. Petitioner submits
that under the 1987 Constitution, there are only three
constitutionally-recognized Commissions, they are: the Civil
Service Commission (CSC), the Commission on Audit (COA) and
the Commission on Elections (COMELEC).43
Petitioners argument that the creation of the ERC seems to be
a prelude to charter change is flimsy and finds no support in
law. This Court cannot subscribe to petitioners thesis that "in
order for the newly-enacted RA 9136 or EPIRA to become a valid
law, we should have to call first a referendum to amend or
totally change the People's Charter."44
In any case, the constitutionality of the abolition of the ERB and
the creation of the ERC has already been settled inKapisanan ng
mga Kawani ng Energy Regulatory Board v. Commissioner Fe
Barin,45 to wit:
All laws enjoy the presumption of constitutionality. To justify the
nullification of a law, there must be a clear and unequivocal
breach of the Constitution. KERB failed to show any breach of
the Constitution.
A public office is created by the Constitution or by law or by an
officer or tribunal to which the power to create the office has
been delegated by the legislature. The power to create an office
carries with it the power to abolish. President Corazon C. Aquino,
then exercising her legislative powers, created the ERB by
issuing Executive Order No. 172 on 8 May 1987.
The question of whether a law abolishes an office is a question
of legislative intent. There should not be any controversy if there
is an explicit declaration of abolition in the law itself. Section 38
of RA 9136 explicitly abolished the ERB. x x x46
Moreover, in Kapisanan, this Court ruled that because of the
expansion of the ERC's functions and concerns, there was a valid
abolition of the ERB.47
Validity of Section 6348
Contrary to petitioner's argument, Section 63 of the EPIRA and
Section 33 of the IRR of the EPIRA did not impair the vested
rights of NPC personnel to claim benefits under existing laws.
Neither does the EPIRA cut short the years of service of the
employees concerned. If an employee availed of the separation
pay and other benefits in accordance with existing laws or the
superior separation pay under the NPC restructuring plan, it is
but logical that those who availed of such privilege will start their
government service anew if they will later be employed by any
government-owned successor company or government
instrumentality.
It is to be noted that this Court ruled in the case of Herrera v.
National Power Corporation,49 that Section 63 of the EPIRA
precluded the receipt by the terminated employee of both
separation and retirement benefits under the Government
Service Insurance System (GSIS) organic law, or
Commonwealth Act (C.A.) No. 186.50
However, it must be clarified that this Courts pronouncements
in
Herrera that separated and retired employees of the NPC "are
not entitled to receive retirement benefits under C.A. No. 186,"
referred only to the gratuity benefits granted by R.A. No. 1616,51
which was to be paid by NPC as the last employer. It did not
proscribe the payment of retirement benefits to qualified
retirees under R.A. No. 660,52Presidential Decree (P.D.) No.
1146,53 R.A. No. 8291,54 and other GSIS and social security laws.
The factual and procedural antecedents of Herrera reveal that it
arose from a case between NPC and several of its separated
employees who were asking additional benefits from NPC under
R.A. No. 1616 after receiving from the former separation
benefits under Section 63 of R.A. No. 9136.
Unable to resolve the issue with its former employees amicably,
NPC filed a petition for declaratory relief, docketed as Civil Case
SCA No. Q-03-50681,55 before the Regional Trial Court of
Quezon City, raising the issue of whether or not the employees
of NPC are entitled to receive retirement benefits under R.A. No.
1616 over and above the separation benefits granted by R.A.
No. 9136.56
Under R.A. No. 1616, a gratuity benefit is given to qualified
retiring members of the GSIS, which is payable by the last
employer. In addition to said gratuity benefits, the qualified
employee shall also be entitled to a refund of retirement
premiums paid, consisting of personal contributions of the
employee plus interest, and government share without interest,
payable by the GSIS. It effectively amended Section 12 (c) of
C.A. No. 186, as follows:
(c) Retirement is likewise allowed to any official or employee,
appointive or elective, regardless of age and employment status,
who has rendered a total of at least twenty years of service, the
last three years of which are continuous. The benefit shall, in
addition to the return of his personal contributions with interest
compounded monthly and the payment of the corresponding
employer's premiums described in subsection (a) of Section five
hereof, without interest, be only a gratuity equivalent to one
month's salary for every year of the first twenty years of
service, plus one and one-half months salary for every
year of service over twenty but below thirty years and
two months salary for every year of service over thirty
years in case of employees based on the highest rate
received and in case of elected officials on the rates of
pay as provided by law. This gratuity is payable on the rates
of pay as provided by law. This gratuity is payable by the
employer or officer concerned which is hereby
authorized to provide the necessary appropriation or
pay the same from any unexpended items of
appropriations or savings in its appropriations. Officials
and employees retired under this Act shall be entitled to the
commutation of the unused vacation and sick leave, based on
the highest rate received, which they may have to their credit
at the time of retirement. x x x57 (Emphasis supplied.)
After trial, the RTC rendered a Decision ruling against the NPC
employees, the decretal portion of which reads:
WHEREFORE, premises considered, Republic Act No. 9136 DID
NOT SPECIFICALLY AUTHORIZE the National Power Corporation
to grant retirement benefits under Republic Act No. 1616 in
addition to separation pay under Republic Act No. 9136.
SO ORDERED.58
Petitioners therein then sought recourse directly to this Court on
a pure question of law. In the preparatory statement of the
Petition for Review on Certiorari,59 it is apparent that the case
was limited only to the interpretation of Section 63 of R.A. No.
9136, in relation to R.A. No. 1616, on the matter of retirement
benefits, to wit:
This is a case of first impression limited to the interpretation of
Section 63, R.A. 9136 (EPIRA), granting separation pay to
terminated NAPOCOR employees, in relation to R.A. 1616, on
the matter of retirement benefits. Respondents NAPOCOR and
DEPARTMENT OF BUDGET AND MANAGEMENT erroneously
contend that the entitlement to the separation pay under R.A.
9136 forfeits the retirement benefit under R.A. 1616.
Petitioners most respectfully submit that since R.A. 9136 and
R.A. 1616 are not inconsistent with each other and they have
distinct noble purposes, entitlement to separation pay will not
disqualify the separated employee who is qualified to retire from
receiving retirement benefits allowed under another law. x x x60
However, in the Decision dated December 18, 2009, it was held
that petitioners therein were not only entitled to receive
retirement benefits under R.A. No. 1616 but also were "not
entitled to receive retirement benefits under Commonwealth Act
No. 186, as amended," which, in effect, might lead to the
conclusion that the declaration encompassed all other benefits
granted by C.A. No. 186 to its qualified members.
In relation to R.A. No. 1616, Herrera should have affected only
the payment of gratuity benefits by NPC, being the last
employer, to its separated employees. It was even categorically
stated that petitioners therein were "entitled to a refund of their
contributions to the retirement fund, and the monetary value of
any accumulated vacation and sick leaves,"61 which is clearly
congruous to the mandate of R.A. No. 1616. The matter of
availment of retirement benefits of qualified employees under
any other law to be paid by the GSIS should not and was not
covered by the decision. In the first place, it was never an issue.
In the case of Santos v. Servier Philippines, Inc.,62 citing Aquino
v. National Labor Relations Commission,63 We declared that the
receipt of retirement benefits does not bar the retiree from
receiving separation pay. Separation pay is a statutory right
designed to provide the employee with the wherewithal during
the period that he/she is looking for another employment. On
the other hand, retirement benefits are intended to help the
employee enjoy the remaining years of his life, lessening the
burden of worrying about his financial support, and are a form
of reward for his loyalty and service to the employer. A
separation pay is given during ones employable years, while
retirement benefits are given during ones unemployable years.
Hence, they are not mutually exclusive.64
Even in the deliberations of Congress during the passage of R.A.
No. 9136, it was manifest that it was not the intention of the
law to infringe upon the vested rights of NPC personnel to claim
benefits under existing laws. To assure the worried and uneasy
NPC employees, Congress guaranteed their entitlement to a
separation pay to tide them over in the meantime.65 More
importantly, to further allay the fears of the NPC employees,
especially those who were nearing retirement age, Congress
repeatedly assured them in several public and congressional
hearings that on top of their separation benefits, they would still
receive their retirement benefits, as long as they would qualify
and meet the requirements for its entitlement.
The transcripts of the Public Consultative Meeting on the Power
Bill held on February 16, 2001, disclose the following:
xxxx
THE CHAIRMAN (SEN. J. OSMENA). Well, the other labor
representation here is Mr. Anguluan.
MR. ANGULUAN: Yes, Your Honor.
THE CHAIRMAN (SEN. J. OSMENA). Okay. Will you present your
paper?
MR. ANGULUAN: We have prepared a paper which we have sent
to the honorable members of the Bicam. x x x.
THE CHAIRMAN (SEN. J. OSMENA). I dont think anyone is going
to deprive you of your rights under the law. You will enjoy all
your rights. You will receive retirement benefits, separation pay,
and all of the rights that are provided to you by law. What we
have objected to in the Senate is retirement benefits higher than
what everybody else gets, like 150 percent or subject to the
approval of the board which means sky is the limit. So, we have
objected to that. But what you are entitled to under the law, you
will get under the law and nobody will deprive you of that.66
A year later, on February 12, 2002, the Joint Congressional
Power Commission was held. The transcripts of the hearing bare
the following:
xxxx
THE CHAIRMAN (REP. BADELLES). They will still be subject to
the same conditions. Meaning, NPC has the discretion whether
to reabsorb or hire back those that avail of the separation
benefits.
SEN. OSMENA (J). No. But they are not being - - the plants are
not being sold, so they are but what we are giving them is a
special concession of retiring early.
No, okay. You consider . . .
THE CHAIRMAN (REP. BADELLES). We are not speaking of
retirement here, we are speaking of their separation benefits
...
SEN. OSMENA (J). Okay, separation benefits.
THE CHAIRMAN (REP. BADELLES). Precisely, if they are
considered terminated.
SEN. OSMENA (J). All right. Separation . . .
THE CHAIRMAN (REP. BADELLES). A retirement plan is a
different program than separation.
SEN. OSMENA (J). Separation benefits, okay.
THE CHAIRMAN (REP. BADELLES). All right.67
Thus, it is clear that a separation pay at the time of the
reorganization of the NPC and retirement benefits at the
appropriate future time are two separate and distinct
entitlements. Stated otherwise, a retirement plan is a different
program from a separation package.
There is a whale of a difference between R.A. No. 1616 and C.A.
No. 186, together with its amendatory laws. They have different
legal bases, different sources of funds and different intents.
In R.A. No. 1616, which is the subject issue in Herrera, the
retirees are entitled to gratuity benefits to be paid by the last
employer and refund of premiums to be paid by the GSIS. On
the other hand, retirement benefits under C.A. No. 186, as
amended by R.A. No. 8291, are to be paid by the GSIS. Stated
otherwise, under R.A. No. 1616, what would be paid by the last
employer, NPC, would be gratuity benefits, and GSIS would
merely refund the retirement premiums consisting of personal
contributions of the employee plus interest, and the employers
share without interest. Under C.A. No. 186, as amended, it is
the GSIS who would pay the qualified employees their
retirement benefits.
Indeed, with several amendments to C.A. No. 186,68 the Court
finds it necessary to clarify Herrera and categorically declare that
it affected only those seeking benefits under R.A. No. 1616.69 It
could not have meant to affect those employees who retired,
and who will retire, under the different amendatory laws of C.A.
No. 186 like R.A. No. 660,70P.D. No. 114671 and R.A. No. 8291.72
At any rate, entitlement of qualified employees to receive
separation pay and retirement benefits is not proscribed by the
1987 Constitution. Section 8 of Article IX (B) of the 1987
Constitution reads:
SEC. 8. No elective or appointive public officer or employee shall
receive additional, double or indirect compensation, unless
specifically authorized by law, nor accept without the consent of
the Congress, any present, emolument, office, or title of any
kind from any foreign government.
Pensions or gratuities shall not be considered as additional,
double, or indirect compensation.73
Moreover, retirement benefits under C.A. No. 186 are not even
considered as compensation. Section 2 (e) of C.A. No. 186
categorically states that
Benefits granted by this Act by virtue of such life or retirement
insurance shall not be considered as compensation or
emolument.74
Under the GSIS law, the retired employees earned their vested
right under their contract of insurance after they religiously paid
premiums to GSIS. Under the contract, GSIS is bound to pay the
retirement benefits as it received the premiums from the
employees and NPC.
In Marasigan v. Cruz,75 this Court ratiocinated that:
A retirement law such as C.A. 186 and amendatory laws
is in the nature of a contract between the government
and its employees. When an employee joins the government
service, he has a right to expect that after rendering the required
length of service and fulfilled the conditions stated in the laws
on retirement, he would be able to enjoy the benefits provided
in said laws. He regularly pays the dues prescribed therefore. It
would be cruel to deny him the benefits he had been expecting
at the end of his service by imposing conditions for his
retirement, which are not found in the law. It is believed to be
a legal duty as well as a moral obligation on the part of the
government to honor its commitments to its employees when as
in this case, they have met all the conditions prescribed by law
and are therefore entitled to receive their retirement benefits.76
Thus, where the employee retires and meets the eligibility
requirements, he acquires a vested right to benefits that is
protected by the due process clause. Retirees enjoy a protected
property interest whenever they acquire a right to immediate
payment under pre-existing law. Thus, a pensioner acquires a
vested right to benefits that have become due as provided under
the terms of the public employees pension statute. No law can
deprive such person of his pension rights without due process
of law, that is, without notice and opportunity to be heard.77
Verily, when an employee has complied with the statutory
requirements to be entitled to receive his retirement benefits,
his right to retire and receive what is due him by virtue thereof
becomes vested and may not thereafter be revoked or
impaired.1avvphi1
Moreover, Section 63 of the EPIRA law, if misinterpreted as
proscribing payment of retirement benefits under the GSIS law,
would be unconstitutional as it would be violative of Section 10,
Article III of the 1987 Constitution78 or the provision on non-
impairment of contracts.
In view of the fact that separation pay and retirement benefits
are different entitlements, as they have different legal bases,
different sources of funds, and different intents, the
"exclusiveness of benefits" rule provided under R.A. No. 8291 is
not applicable. Section 55 of R.A. No. 8291 states: "Whenever
other laws provide similar benefits for the same contingencies
covered by this Act, the member who qualifies to the benefits
shall have the option to choose which benefits will be paid to
him."
Accordingly, the Court declares that separated, displaced,
retiring, and retired employees of NPC are legally entitled to the
retirement benefits pursuant to the intent of Congress and as
guaranteed by the GSIS laws. Thus, the Court reiterates:
1] that the dispositive portion in Herrera holding that separated
and retired employees "are not entitled to receive retirement
benefits under Commonwealth Act No. 186," referred only to the
gratuity benefits under R.A. No. 1616, which was to be paid by
NPC, being the last employer;
2] that it did not proscribe the payment of the retirement
benefits to qualified retirees under R.A. No. 660, P.D. No. 1146,
R.A. No. 8291, and other GSIS and social security laws; and
3] that separated, rehired, retiring, and retired employees
should receive, and continue to receive, the retirement benefits
to which they are legally entitled.
Petition for Mandamus
As for petitioner's prayer that he be reinstated, suffice it to state
that the issue has been rendered moot by the Decision and
Resolutions of this Court in the case of NPC Drivers and
Mechanics Association (NPC DAMA) v. National Power
Corporation (NPC)79 and by the above disquisitions.
In Conclusion
While we commend petitioner's attempt to argue against the
privatization of the NPC, it is not the proper subject of herein
petition. Petitioner belabored on alleging facts to prove his point
which, however, go into policy decisions which this Court must
not delve into less we violate separation of powers. The wisdom
of the privatization of the NPC cannot be looked into by this
Court as it would certainly violate this guarded principle. The
wisdom and propriety of legislation is not for this Court to pass
upon.80 Every law has in its favor the presumption of
constitutionality, and to justify its nullification, there must be a
clear and unequivocal breach of the Constitution, and not one
that is doubtful, speculative or argumentative.81
As in National Power Corporation Employees Consolidated Union
(NECU) v. National Power Corporation (NPC),82this Court held:
Whether the States policy of privatizing the electric power
industry is wise, just, or expedient is not for this Court to decide.
The formulation of State policy is a legislative concern. Hence,
the primary judge of the necessity, adequacy, wisdom,
reasonableness and expediency of any law is primarily the
function of the legislature.83
WHEREFORE, premises considered and subject to the above
disquisitions, the Petition for Certiorari and the Supplemental
Petition for Mandamus are Dismissed for lack of merit.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
SECOND DIVISION
[ G.R. No. 202331, April 22, 2015 ]
THE PROVINCIAL GOVERNMENT OF AURORA,
PETITIONER, VS. HILARIO M. MARCO,
RESPONDENT.
DECISION
LEONEN, J.:
The prohibition on midnight appointments only applies to
presidential appointments. It does not apply to appointments
made by local chief executives.
Nevertheless, the Civil Service Commission has the power to
promulgate rules and regulations to professionalize the civil
service. It may issue rules and regulations prohibiting local chief
executives from making appointments during the last days of
their tenure. Appointments of local chief executives must
conform to these civil service rules and regulations in order to
be valid.
This is a Petition for Review on Certiorari[1] of the Court of
Appeals Decision[2] that denied the appeal of the Provincial
Government of Aurora (the Province). The Province appealed
the Resolution[3] of the Civil Service Commission granting the
Motion for Execution filed by Hilario M. Marco (Marco). The Civil
Service Commission had earlier reversed and set aside the
disapproval of Marco's permanent appointment as Cooperative
Development Specialist II.[4]
Governor Ramoncita P. Ong (Governor Ong) permanently
appointed[5] Marco as Cooperative Development Specialist II on
June 25, 2004, five (5) days before the end of her term as
Governor of the Province.[6] On June 28, 2004, Marco's
appointment, together with 25 other appointments, was
submitted to the Civil Service Commission Field Office-Aurora
(the Field Office). Annexed to Marco's appointment papers was
a certification from Provincial Budget Officer Norma R. Clemente
(Provincial Budget Officer Clemente) and Provincial Accountant
Wilfredo C. Saturno (Provincial Accountant Saturno) stating that
funds from the Province's 2004 Annual Budget were available to
cover the position.[7]
On June 30, 2004, newly elected Governor Bellaflor Angara-
Castillo assumed office. The next day, she called to an executive
meeting all the department heads of the Province.[8]
During the executive meeting, Provincial Budget Officer
Clemente allegedly manifested that the Province had no funds
available to pay for the salaries of Governor Ong's 26
appointees.[9] She subsequently issued a Letter recalling the
previously issued certification of the availability of funds:
In view of the result of the dialogue of the concerned offices
regarding the financial status of the Provincial Government of
Aurora, we hereby recall/retrieve our previously issued
certification of availability of funds relative to the appointments
issued by Governor Ramoncita P. Ong.[10]
Provincial Budget Officer Clemente's Letter was submitted to the
Province's Human Resource Management-Office. It was then
forwarded to the Field Office.[11]
Due to the recall of the certification, the Field Office disapproved
Marco's appointment in the Letter[12] dated July 5, 2004.[13]
The Province, through Human Resource Management Officer
Liwayway G. Victorio, served Marco a copy of the Letter dated
July 5, 2004. Marco was, thus, advised to refrain from reporting
for work beginning July 8, 2004, the day he received notice of
the disapproval of his appointment.[14]
Marco wrote the Civil Service Commission Regional Office No. IV
(Regional Office), moving for the reconsideration of the
disapproval of his appointment.[15] The Regional Office,
however, denied reconsideration in its Decision[16] dated April
6, 2005 and affirmed the disapproval of Marco's appointment. It
said that "[t]he lack of funds for the [26 appointments Governor
Ong issued] was established during the meeting of the different
department heads of Aurora Province and their new
governor."[17]
Through the Letter dated May 17, 2005, Marco appealed before
the Civil Service Commission.[18] The Province, through its
Human Resource Management Office, received a copy of
Marco's Letter on May 23, 2005.[19] However, it failed to
comment on the appeal within 10 days from receipt as required
by Section 73 of the Uniform Rules on Administrative Cases in
the Civil Service.[20]
In the Resolution[21] dated April 14, 2008, the Civil Service
Commission granted Marco's appeal and set aside the Regional
Office's Decision dated April 6, 2005. It ruled that Marco's
appointment was valid since it was accompanied by a
certification of availability of funds.[22] As to the Letter
withdrawing the certification, the Civil Service Commission ruled
that it did not affect the validity of Marco's appointment because
the Province "failed to submit documentary evidence to support
its claim [that it had no funds to pay for the services of Governor
Ong's appointees]."[23]
The Civil Service Commission added that the Province's
withdrawal of the certification was "unfair to Marco":[24]
It is unfair to Marco who applied for the said position believing
in good faith that funds were available, passed the screening
conducted by the Personnel Selection Board (PSB) on February
12 & 13, 2004, was appointed on June 25, 2004 and was later
told to stop reporting for work as his appointment was
disapproved by [the Civil Service Commission Field Office-
Aurora] simply because the provincial government under the
new governor realized that it has no funds to pay for his
services.[25]
Thus, the Civil Service Commission ordered the Regional Office
to investigate whether Provincial Budget Officer Clemente and
Provincial Accountant Saturno were administratively liable for
certifying that funds were available to cover the positions filled
by Governor Ong's appointees but subsequently withdrawing
this certification.[26] It ordered the. Field Office to reflect the
Resolution in Marco's appointment papers and in his Service
Record.[27]
The Province received a copy of the April 14, 2008 Resolution
on May 21, 2008.[28]
On July 22, 2008, Provincial Administrator Alex N. Ocampo
(Provincial Administrator Ocampo), on behalf of the Province,
filed before the Civil Service Commission a Petition for Relief[29]
on the ground of extrinsic fraud. According to him, the Civil
Service Commission deprived the Province of an opportunity to
be heard when it failed to implead the Province as an
indispensable party.[30] He reiterated that Marco's appointment
was void since the Province had no funds to pay for Marco's
salaries.[31]
The Civil Service Commission denied outright the Petition for
Relief in the Resolution[32] dated November 4, 2008. It ruled
that Provincial Administrator Ocampo had no legal personality
to file the Petition for Relief absent an authorization from the
Provincial Governor. Moreover, a petition for relief was not
allowed under the Uniform Rules on Administrative Cases in the
Civil Service. Thus, Provincial Administrator Ocampo erred in
filing a Petition for Relief.[33]
Provincial Administrator Ocampo filed a Motion for
Reconsideration,[34] this time with a written authority[35] to
file from Governor Bellafior Angara-Castillo annexed to the
Motion.[36]
The Civil Service Commission denied the Motion for
Reconsideration in the Resolution[37] dated September 8, 2009.
It ruled that its April 14, 2008 Resolution had become final and
executory considering that the Province did not file a motion for
reconsideration of this Resolution within the reglementary
period.[38]
Consequently, Marco requested the Civil Service Commission to
implement the April 14, 2008 Resolution.[39] Through the
Resolution[40] dated July 6, 2010, the Commission granted
Marco's request.
Provincial Administrator Ocampo filed a Motion for
Reconsideration with Motion to Quash "Execution,"[41] arguing
that the April 14, 2008 Resolution had already been
implemented. As the Civil Service Commission had ordered, the
Province reflected the April 14, 2008 Resolution.in Marco's
appointment papers and in his Service Record.[42]
In the Resolution[43] dated January 24, 2011, the Civil Service
Commission denied the Motion for Reconsideration with Motion
to Quash "Execution." It noted that the Province still refused to
reinstate Marco despite the April 14, 2008 Resolution and thus
clarified that this Resolution necessarily resulted in the approval
of Marco's appointment and his reinstatement as Cooperative
Development Specialist II.[44] The January 24, 2011 Resolution
states:
Ocampo, et al. nonchalantly tries to sweep away what is obvious
in the ruling of the Commission in [the April 14, 2008
Resolution], i.e., the reversal of the disapproval by [the Regional
Office] and [the Field Office] of Marco's appointment. The
reversal of the two (2) decisions mean[s] that Marco's
appointment as Cooperative Development Specialist II is in
order and should be approved. Consequently, the approval of
Marco's appointment is legal proof that he is entitled to perform
the duties and functions of the said position and receive the
salaries and benefits attached to the position.
WHEREFORE, the Motion for Reconsideration with Motion to
Quash of Alex N. Ocampo, Provincial Administrator, and Manuel
Joseph R. Bretana III, Legal Counsel, Provincial Government of
Aurora, is DENIED. Accordingly, [the July 6, 2010 Resolution]
which grants the Motion for the Implementation of [the April 14,
2008 Resolution] filed by Hilario M. Marco, STANDS.
The Provincial Governor of Aurora is directed to reinstate Marco
to his Cooperative Development Specialist II position and pay
his back salaries and other benefits from the time that Marco
was actually prohibited from reporting for work up to his actual
reinstatement.[45]
A Petition for Review[46] under Rule 43 with prayer for issuance
of a temporary restraining order[47] was filed before the Court
of Appeals. For the first time, the Province argued that Marco
was a midnight appointee since Governor Ong appointed him
during the last five (5) days of her tenure. Therefore, Marco's
appointment was void.[48]
In the Decision dated March 2, 2012, the Court of Appeals
denied the Petition for Review and affirmed the implementation
of the Civil Service Commission's April 14, 2008 Resolution.[49]
The Court of Appeals ruled that the April 14, 2008 Resolution
already became final and executory since there was no motion
for reconsideration filed within the reglementary period.
Although the Province filed a Petition for Relief before the Civil
Service Commission, the Court of Appeals held that the remedy
of a petition for relief is not allowed under the Uniform Rules on
Administrative Cases in the Civil Service. Moreover, the Province
failed to prove the extrinsic fraud that allegedly prevented it
from filing a motion for reconsideration. Thus, the Civil Service
Commission correctly denied the Petition for Relief.[50]
On the merits, the Court of Appeals affirmed Marco's
appointment. The Province had earlier certified that it had funds
to pay for his salary as Cooperative Development Specialist
II.[51] It found that the Sangguniang Panlalawigan even passed
a "Supplemental Budget for 2004 appropriating P54,014,127.01
in provincial funds."[52] Therefore, the issuance of the Letter
recalling the certification "[did] not change the fact that there
[were] funds available for [Marco's] appointment."[53]
On the claim that Marco was a midnight appointee, the Court of
Appeals said that Marco's case fell within the exception provided
under Civil Service Commission Resolution No. 030918.[54] He
was fully qualified for the position and underwent a screening
process on February 12 and 13, 2004, long before the election
ban.[55] Therefore, he was validly appointed.
The Province filed a Motion for Reconsideration,[56] which the
Court of Appeals denied in the Resolution[57] dated June 13,
2012.
The Province filed a Petition for Review on Certiorari before this
court. Marco filed his Comment,[58] after which the Province
filed its Reply.[59]
In the Resolution[60] dated January 30, 2013, this court ordered
the parties to file their respective memoranda. The Province filed
its Memorandum[61] on April 25, 2013, while Marco filed his
Memorandum[62] on May 2, 2013.
The Province maintains that Marco's appointment was void on
the ground that he was a midnight appointee. Marco was
appointed by Governor Ong five (5) days before the end of her
term, in violation of Civil Service Commission Resolution No.
030918,[63] paragraph 2.1 of which provides:
2 All appointments issued by elective appointing officials
. after elections up to June 30 shall be disapproved, except
1 if the appointee is fully qualified for the position and had
. undergone regular screening processes before the Election
Ban as shown in the Promotion and Selection Board (PSB)
report or minutes of meeting.
On Marco's claim that he underwent a regular screening
process, which exempted his appointment from the prohibition
on midnight appointments, the Province counters that Marco
failed to present convincing evidence to prove this claim. The
Minutes of the Meeting of the Promotion Selection Board showed
that Marco was among the 201 applicants allegedly screened by
the Board within two (2j days. According to the Province, two
days is a period too short for the Personnel Selection Board to
have carefully considered all the applications.[64]
As to the claim that the April 14, 2008 Resolution is final and
executory and may no longer be reversed, the Province argues
that nothing prevents this court from setting aside this
Resolution. It argues that the promulgation of Nazareno, et al.
v. City of Dumaguete[65] was a supervening event warranting
the reversal of the final and executory decision.[66]
In Nazareno, this court voided 89 appointments made by a city
mayor within the month that he left office, ruling that they were
mass appointments prohibited under Civil Service Commission
Resolution No. 010988.[67] The Province argues that Governor
Ong's appointments were analogous to the Nazareno
appointments; hence, Governor Ong's appointments should
likewise be voided.[68]
Finally, the Province insists that Marco's appointment was void
due to lack of funds to pay for the position.[69] In ordering the
Province to uphold Marco's appointment despite the lack of
funds, the Civil Service Commission allegedly "interfered with
[the Province's] prerogative to draw up its own budget and to
spend its ... revenues as it deems fit."[70]
For his part, Marco maintains that the Civil Service Commission's
Resolution dated April 14, 2008 has long become final and
executory. Therefore, the Resolution may no longer be
disturbed.[71]
On the claim that he was a midnight appointee, Marco pointed
out that the Province belatedly raised this claim. The Province
never raised it before the Civil Service Commission but only did
so before the Court of Appeals.[72] By belatedly raising this
claim, the Province should be deemed to have "implicitly
recognized"[73] that he was not a midnight appointee.
In any case, Marco asserts that he was qualified for the position
and that he underwent a selection process as required by
Resolution No. 030918. Thus, his appointment was an exception
to the prohibition on midnight appointments.[74]
On the alleged interference of the Civil Service Commission with
the Province's discretionary power to appoint, Marco argues that
it "merely upheld the validity of an existing appointment[.]"[75]
The Civil Service Commission did not "[substitute] its own
appointee for the one chosen by the appointing authority."[76]
Therefore, it correctly upheld his appointment.
Lastly, Marco argues that Nazareno does not apply in this case.
This court in Nazareno voided the 89 appointments of the
appointing authority based on the criteria set in Resolution No.
010988.[77] However, Nazareno had been promulgated even
before he was appointed in office. Moreover, Resolution No.
010988 did not set any new criteria for appointments made
during the last days of the appointing authority in office.
Therefore, the promulgation of Nazareno is not a supervening
event that can set aside the final and executory April 14, 2008
Resolution.[78]

The issues for this court's resolution are:
First, whether the Resolution dated July 6, 2010, which ordered
the implementation of the April 14, 2008 Resolution, was void
for varying the terms of the April 14, 2008 Resolution;
Second, whether the withdrawal of the certification of
sufficiency of funds voided Marco's appointment; and
Lastly, whether Marco's appointment was void on the ground
that he was a midnight appointee.
This Petition must be denied.
I despite having been filed out of time.[90]
We note that the Province filed an appeal before the Court of
Appeals against the Civil Service Commission's Resolution that
ordered the execution of the April 14, 2008 Resolution.[79]
The Province erred in filing an appeal before the Court of
Appeals, as no appeal may be taken from an order of
execution.[80] Instead, it should have filed a petition for
certiorari the appropriate special civil action under Rule 65 of
the Rules of Court.[81]
The Court of Appeals, therefore, should have dismissed the
Province's appeal outright. Rule 50, Section 1(i) of the Rules of
Court allows the Court of Appeals to dismiss an appeal where
the order appealed from is not appealable.[82]
The rule prohibiting appeals from orders of execution is based
on the doctrine of immutability of final judgments. Under this
doctrine, a final and executory judgment "is removed from the
power and jurisdiction of the court which rendered it to further
alter or amend it, much less revoke it."[83] The judgment
remains immutable even if it is later on discovered to be
erroneous.[84] The doctrine "is grounded on fundamental
considerations of public policy and sound practice that at the
risk of occasional error, the judgments of the courts must
become final at some definite date fixed by law. To allow courts
to amend final [and executory] judgments will result in endless
litigation."[85]
The doctrine of immutability of final judgments applies to
decisions rendered by the Civil Service Commission. A decision
of the Civil Service Commission becomes final and executory if
no motion for reconsideration is filed within the 15-day
reglementary period under Rule VI, Section 80 of the Uniform
Rules on Administrative Cases in the Civil Service:
Section 80. Execution of Decision. - The decisions of the
Commission Proper or its Regional Offices shall be immediately
executory after fifteen (15) days from receipt thereof, unless a
motion for reconsideration is seasonably filed, in which case the
execution of the decision shall be held in abeyance.
In Mendiola v. Civil Service Commission,[86] Teodorico Mendiola
(Mendiola) occupied the position of Budget Examiner III when
the Economic Intelligence and Investigation Bureau terminated
his employment.[87] On Mendiola's appeal, the Civil Service
Commission ordered his reinstatetment in the resolution dated
September 21, 1988.[88]
The Economic Intelligence and Investigation Bureau failed to file
a motion for reconsideration within the 15-day reglementary
period. Consequently, Mendiola filed a motion for execution of
the September 21, 1988 resolution.[89]
Unknown to Mendiola, the Economic Intelligence and
Investigation Bureau belatedly filed a motion for
reconsideration, which the Civil Service Commission granted
This court reversed the Civil Service Commission's grant of the
motion for reconsideration and ordered Mendiola's
reinstatement as the Commission previously ordered in the
September 21, 1998 resolution. This court held that the
September 21, 1998 resolution had become final and executory
when the Economic Intelligence and Investigation Bureau failed
to file a motion for reconsideration within the reglementary
period. Thus, the Civil Service Commission may no longer
reverse the resolution.[91]
In Obiasca v. Basallote,[92] Jeane O. Basallote (Basallote) was
appointed Administrative Officer II by the Department of
Education and was assigned to work in Tabaco National High
School in Albay. Basallote had assumed the duties of her office
as Administrative Officer II when she learned that Arlin B.
Obiasca (Obiasca) was subsequently appointed to the same
position. Obiasca's appointment was attested to by the Civil
Service Commission, while Basallote's appointment papers were
not even forwarded to the Civil Service Commission.[93]
Basallote protested Obiasca's appointment before the Civil
Service Commission Regional Office V. The Regional Office
dismissed the protest. On appeal, the Civil Service Commission
reversed the Regional Office's Decision, thus approving
Basallote's appointment and recalling that of Obiasca.[94]
Without filing a motion for reconsideration before the Civil
Service Commission, Obiasca directly filed an appeal before the
Court of Appeals. The Court of Appeals affirmed the Civil Service
Commission's Decision.[95]
Obiasca's Petition for Review on certiorari was likewise denied
by this court.[96] This court held that Obiasca's failure to file a
motion for reconsideration rendered the Civil Service
Commission's Decision approving Basallote's appointment final
and executory. Thus, the Civil Service Commission's Decision
may no longer be disturbed:[97]
[Obiasca] did not file a petition for reconsideration of the [Civil
Service Commission's resolution] before filing a petition for
review in the [Court of Appeals]. Such fatal procedural lapse on
[Obiasca]'s part allowed the [Civil Service Commission's
resolution] to become final and executory. Hence, for all intents
and purposes, the [Civil Service Commission's resolution] has
become immutable and can no longer be amended or modified.
A final and definitive judgment can no longer be
changed, revised, amended or reversed. Thus, in praying
for the reversal of the assailed Court of Appeals decision which
affirmed the final and executory [Civil Service Commission
resolution], [Obiasca] would want the Court to reverse a final
and executory judgment and disregard the doctrine of
immutability of final judgments.[98] (Emphasis in the original,
citations omitted)
In this case, the Province, through its Human Resource
Management Office, received a copy of the Civil Service
Commission's April 14, 2008 Resolution on May 21, 2008.[99]
Thus, the Province had until June 5, 2008 to file a motion for
reconsideration.
However, the Province failed to file a motion for reconsideration
of the April 14, 2008 Resolution within the 15-day reglementary
period. With no motion for reconsideration seasonably filed, the
April 14, 2008 Resolution-became final and executory on June
6, 2008.
In addition, the remedy of a petition for relief from judgment is
not among those provided under the Uniform Rules on
Administrative Cases in the Civil Service. This means that the
remedy is not allowed under civil service rules.[100] Even
assuming that a petition for relief may be filed before the Civil
Service Commission, the party must show that the assailed
judgment became final through fraud, accident, mistake, or
excusable negligence.[101]
Here, the Province failed to refute that it received a copy of the
Civil Service Commission's April 14, 2008 Resolution. It was
given an opportunity to be heard, which is the essence of
administrative due process.[103] It did not even justify why it
failed to file a motion for reconsideration despite its receipt of
the Civil Service Commission's Resolution. Contrary to the
Province's claim, there was no extrinsic fraud since the Province
was not prevented "from fully and fairly presenting [its]
defense[.]"[104] The Civil Service Commission correctly denied
the Province's Petition for Relief.
Since the April 14, 2008 Resolution already became final and
executory, it may no longer be reversed. The Civil Service
Commission correctly granted Marco's request for the
Resolution's implementation.
II
In implementing the April 14, 2008 Resolution, the Civil Service
Commission ordered the Province to reinstate Marco and to pay
him back salaries and other benefits:
WHEREFORE, the request of Hilario M. Marco, Cooperative
Development Specialist II, Provincial Government of Aurora, for
the implementation of CSC Resolution No. 08-0656 dated April
14, 2008 is GRANTED. Accordingly, the Provincial Government
of Aurora is directed to reinstate Marco to his former position
and the payment of his back salaries and other benefits starting
from the date he was advised to stop reporting for work on July
8, 2004 up to his actual reinstatement.[105]
According to the Province, the Civil Service Commission went
beyond the order sought to be implemented and "varie[d] the
term of the judgment."[106] The Province claims that nothing
in the April 14, 2008 Resolution ordered the reinstatement of
Marco. The dispositive portion of the resolution stated:[107]
WHEREFORE, the appeal of Hilario M. Marco is GRANTED.
Accordingly, the Decision No. 05-0212 dated April 6, 2005 of the
Civil Service Commission Regional Office IV, Quezon City,
affirming the disapproval of the appointment of Marco for lack
of certification of availability of funds is REVERSED and SET
ASIDE.
The Civil Service Commission Field Office-Aurora is directed to
reflect this decision in the appointment of Marco and in his
Service Record.[108]
Therefore, the Province claims that the order implementing the
April 14, 2008 Resolution must be set aside.
We rule that the Civil Service Commission did not vary the terms
of the April 14, 2008 Resolution.
Under Rule IV, Section 1 of Civil Service Commission
Memorandum Circular No. 40-98, an appointment takes effect
immediately upon issuance by the appointing authority. Once
the appointee has assumed the duties of the position, he or she
is entitled to receive the salaries corresponding with the position
though the Civil Service Commission has not yet approved the
appointment.
Should the appointment be initially disapproved, it nevertheless
remains effective if a motion for reconsideration or an appeal of
the disapproval is seasonably filed with the proper office.[109]
Therefore, during the pendency of the motion for
reconsideration, the appointee remains entitled to his or her
salaries until the appointment is finally disapproved by the Civil
Service Commission.[110]
Marco's appointment immediately took effect on June 25, 2004
when Governor Ong appointed him as Cooperative Development
Specialist II. Although his appointment was initially disapproved
by the Field Office, Marco seasonably filed a Motion for
Reconsideration before the Civil Service Commission. Thus,
Marco's appointment remained effective during the pendency of
the Motion for Reconsideration.
Because the Civil Service Commission granted his Motion for
Reconsideration and set aside the disapproval of his
appointment, Marco remained entitled to his position. The
necessary consequence of granting reconsideration is his
reinstatement as Cooperative Development Specialist II.
The Civil Service Commission correctly implemented the April
14, 2008 Resolution by ordering Marco's reinstatement and the
payment of his back salaries and other benefits.
III
The Province contends that the Civil Service Commission erred
in approving Marco's appointment as Cooperative Development
Specialist II. It allegedly had no funds to cover the position.
Therefore, the appointment was void, having been issued in
violation of Rule V, Section 1(e)(ii) of the Civil Service
Commission Memorandum Circular No. 40-98. The rule states:
SECTION 1. In addition to the common requirements and
procedures, the following requirements and guidelines shall also
be observed and the necessary documents submitted, when
applicable.
....
e LGU Appointment. Appointment in local government units
. for submission to the Commission shall be accompanied, in
addition to the common requirements, by the following
....
ii Certification by the Municipal/City/Provincial
. Accountant/Budget Officer that funds are available.
The certification ensures that the appointee shall occupy a
position adequately covered by appropriations as required by
Section 325(e) of the Local Government Code:
SECTION 325. General Limitations. - The use of the provincial,
city, and municipal funds shall be subject to the following
limitations:
....
(e) Positions in the official plantilla for career positions which are
occupied by incumbents holding permanent appointments shall
be covered by adequate appropriations[.]
As required by Rule V, Section 1 (e)(ii) of the Civil Service
Commission Memorandum Circular No. 40-98, Marco's
appointment was accompanied by a certification from the
Province, through the Provincial Budget Officer and the
Provincial Accountant, that funds were available under the 2004
Annual Budget of the Province for the 26 positions issued by
Governor Ong. Therefore, there was no violation of Rule V,
Section 1(e)(ii) of the Civil Service Commission Memorandum
Circular No. 40-98. There was no violation of existing Civil
Service Law, rules and regulations. Marco's appointment
remains effective.
That the Province suddenly had no funds to pay for Marco's
salaries despite its earlier certification that funds were available
under its 2004 Annual Budget does not affect his appointment.
None of the grounds for disapproval, of an appointment under
Rule V, Section 7[111] of the Omnibus Rules Implementing the
Civil Service Law exists in this case. The appointment remains
effective, and the local government unit remains liable for the
salaries of the appointee.[112]
Moreover, the earlier certification, if proven false, constitutes
intentional misrepresentation of a material fact concerning a civil
service matter. This is an offense punishable by fine, or
imprisonment, or both as provided under Section 67 of the Civil
Service Law:
SEC. 67. Penal Provision. Whoever makes any appointment
or employs any person in violation of any provision of this Title
or the rules made thereunder or whoever commits fraud, deceit
or intentional misrepresentation of material facts concerning
other civil service matters, or whoever violates, refuses or
neglects to comply with any of such provisions or rules, shall
upon conviction be punished by a fine not exceeding one
thousand pesos or by imprisonment not exceeding six (6)
months, or both such fine and imprisonment in the discretion of
the court.
We, therefore, agree with the Civil Service Commission in
ordering the Regional Office to commence appropriate
administrative proceedings against Provincial Budget Officer
Norma R. Clemente and Provincial Accountant Wilfredo C.
Saturno for issuing the certification of availability of funds:
The Commission disapproves of the conduct of the officials of
the Provincial Government of Aurora in issuing a certification
dated June 25, 2004 that funds are available in the 2004 Annual
Budget to support the appointments issued by outgoing
Governor Ong and then later [withdrawing] the same when a
new governor assumes office. As such, the CSCRO No. IV is
directed to conduct the appropriate administrative proceedings
to determine whether Norma R. Clemente (Provincial Budget
Officer) and Wilfredo C. Saturno (Provincial Accountant) violated
Civil Service Law, rules and regulations.[113]
IV
The Province claims that Marco was a midnight appointee.
Moreover, he was among those appointed "en masse"[114] by
Governor Ong before the end of her term. Thus, the Civil Service
Commission should have disapproved Marco's appointment.
A midnight appointment "refers to those appointments made
within two months immediately prior to the next presidential
election."[115]Midnight appointments are prohibited under
Article VII, Section 15 of the Constitution:
SECTION 15. Two months immediately before the next
presidential elections and up to the end of his term, a President
or Acting President shall not make appointments, except
temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public
safety.
Midnight appointments are prohibited because an outgoing
President is "duty bound to prepare for the orderly transfer of
authority to the incoming President, and he [or she] should not
do acts which he [or she] ought to know, would embarrass or
obstruct the policies of his [or her] successor."[116] An outgoing
President should not "deprive the new administration of an
opportunity to make the corresponding appointments."[117]
However, the constitutiona prohibition on midnight
appointments only applies to presidential appointments. It does
not apply to appointments made by local chief executives.
In De Rama v. Court of Appeals,[118] Mayor Conrado L. de
Rama (Mayor de Rama) of Pagbilao, Quezon sought to recall 14
appointments made by former Mayor Ma. Evelyn S. Abeja on the
sole ground that they were midnight appointments.[119] The
Civil Service Commission denied Mayor de Rama's request,
ruling that the prohibition on midnight appointments only
applies to outgoing Presidents.[120] On appeal, the Court of
Appeals affirmed the Civil Service Commission's decision.[121]
This court agreed with the Civil Service Commission and the
Court of Appeals. In denying Mayor de Rama's petition for
review on certiorari, this court said that the prohibition on
midnight appointments "applies only to presidential
appointments."[122] This court noted that "there is no law that
prohibits local elective officials from making appointments
during the last days of his or her tenure."[123]
Nonetheless, the Civil Service Commission, as the central
personnel agency of the Government,[124] may "establish rules
and regulations to promote efficiency and professionalism in the
civil service."[125] Although it conceded that no law prohibits
local elective officials from making appointments during the last
days of their tenure, this court in Nazareno upheld Civil Service
Commission Resolution No. 010988, which prohibited local
elective officials from making appointments immediately before
and after elections.[126] In addition, Resolution No. 010988
prohibited "mass appointments," or those "issued in bulk or in
large number after the elections by an outgoing local chief
executive and there is no apparent need for their immediate
issuance." Resolution No. 010988 states:
WHEREAS, the May 14, 2001 national and local elections have
just concluded and the Commission anticipates controversies
that would arise involving appointments issued by outgoing local
chief executives immediately before and after elections;
WHEREAS, the Commission observed the tendency of some
outgoing local chief executives to issue appointments even after
the elections, especially when their successors have already
been proclaimed;
WHEREAS, this practice of some outgoing local chief
executives causes animosities between the outgoing and
incoming officials and the people who are immediately affected
and made to suffer the consequences thereof are the ordinary
civil servants and eventually, to a larger extent, their
constituents themselves;
WHEREAS, one of the reasons behind the prohibition in issuing
appointments or hiring of new employees during the prohibited
period as provided for in CSC Memorandum Circular No. 7, series
of 2001 is to prevent the occurrence of the foregoing, among
others;
WHEREAS, local elective officials, whose terms of office are
about to expire, are deemed as "caretaker" administrators who
are duty bound to prepare for the smooth and orderly transfer
of power and authority to the incoming local chief executives;
WHEREAS, under Section 15, Article VII of the Constitution,
the President or Acting President is prohibited from making
appointments two (2) months immediately before the next
presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public
safety;
WHEREAS, while there is no equivalent provision in the Local
Government Code of 1991 (Republic Act No. 7160) or in the Civil
Service Law (Book V of Executive Order No. 292) of the above-
stated prohibition, the rationale against the prohibition on the
issuance of "midnight appointments" by the President is
applicable to appointments extended by outgoing local chief
executives immediately before and/or after the elections; and
WHEREAS, the Commission also deems it fit to issue guidelines
that would assist processors in their actions on appointments
issued by theses outgoing local chief executives immediately
before and/or after the elections;
NOW THEREFORE, the Commission, pursuant to its
constitutional mandate as the central personnel agency of the
government, hereby issues and adopts the following guidelines:
1. The validity of an appointment issued immediately
before or after the elections by outgoing local chief
executives is to be determined on the basis of the
nature, character and merit of the individual
appointment and the particular circumstances
surrounding the same.
2.
....
1. All appointments, whether original, transfer,
reemployment, reappointment, promotion or
demotion, except in cases of renewal and
reinstatement, regardless of status, which are issued
AFTER the elections, regardless of their dates of
effectivity and/or date of receipt by the Commission,
including its Regional or Field Offices, of said
appointments or the Report of Personnel Actions
(ROPA), as the case may be, shall be disapproved
unless the following requisites concur relative to their
issuance:
2.
a The appointment has gone through the regular screening
) by the Personnel Selection Board (PSB) before the
prohibited period on the issuance of appointments as
shown by the PSB report or minutes of its meeting;
b That the appointee is qualified;
)
c There is a need to fill up the vacancy immediately in order
) not to prejudice public service and/or endanger public
safety;
d That the appointment is not one of those mass
) appointments issued after the elections.
3.
1. The term "mass appointments" refers to those issued
in bulk or in large number after the elections by an
outgoing local chief executive and there is no
apparent need for their immediate issuance.
2.
This court said that the rationale behind Resolution No. 010988
"is not difficult to see":[127]
Appointments are banned prior to the elections to ensure that
partisan loyalties will not be a factor in the appointment process,
and to prevent incumbents from gaining any undue advantage
during the elections. To this end, appointments within a certain
period of time are proscribed by the Omnibus Election Code and
related issuances. After the elections, appointments by defeated
candidates are prohibited, except under the circumstances
mentioned in CSC Resolution No. 010988, to avoid animosities
between outgoing and incoming officials, to allow the incoming
administration a free hand in implementing its policies, and to
ensure that appointments and promotions are not used as a tool
for political patronage or as a reward for services rendered to
the outgoing local officials.[128](Citation omitted)
In Nazareno, this court affirmed the disapproval of 89
appointments Mayor Felipe Antonio B. Remollo (Mayor Remollo)
of Dumaguete City made within the month that he left office.
This court found that the appointments were issued in violation
of Resolution No. 010988. Particularly, it found no evidence that
the Personnel Selection Board carefully deliberated on the
qualifications of Mayor Remollo's appointees.[129] Moreover,
the timing and the large number of appointments "indicate that
the appointments were hurriedly issued by the outgoing
administration."[130]
The Province argues that the 26 appointments Governor Ong
issued during the last days of her tenure were similar to those
Mayor Remollo issued in Nazareno. Governor Ong allegedly
issued mass appointments, the immediate issuance of which the
Province had no apparent need.
We note, however, that Resolution No. 010988 the Resolution
effective when Mayor Remollo issued the appointments in
Nazareno was superseded by Resolution No. 030918 dated
August 28, 2003.[131] Resolution No. 030918 on "midnight
appointments" by local chief executives was effective at the time
Governor Ong issued the disputed appointments. Resolution No.
030918 states, in part:
WHEREAS, under Section 3, Article IX-B of the 1987
Constitution, the Commission, as the central personnel agency
of the Government, is mandated to establish a career service
and adopt measures to promote efficiency, integrity,
responsiveness, progressiveness and courtesy in the civil
service, among others;
WHEREAS, the Constitution further mandates the Commission
to issue its own rules and regulations for effective and efficient
personnel administration in the Civil Service;
WHEREAS, Section 12(1) and (2), Book V of the Executive
Order No. 292 (Administrative Code of 1987) mandates the
Commission to administer and enforce the constitutional and
statutory provisions on the merit system for all ranks and levels
in the Civil Service and to prescribe, amend and enforce rules
and regulations for carrying into effect the provision of the Civil
Service Law and other pertinent laws;
WHEREAS, problems and controversies inevitably arise
involving appointments issued by outgoing elective and
appointive officials just before and after election periods;
WHEREAS, personnel morale, office operations, and delivery of
public services are inevitably disrupted by such problem's and
controversies;
WHEREAS, there is a need to forestall such problems by
defining and making more stringent the restrictions on
personnel appointments to be observed by outgoing appointing
officials, elective or appointive, before they leave office;
NOW, THEREFORE, the Commission, pursuant to its
constitutional and statutory mandates as the central personnel
agency of the government, hereby issues and adopts the
following guidelines:
2. Action on Appointments issued by Elective and
Appointive Officials After the Elections Up to June 30
2 All appointments issued by elective appointing officials
. after elections up to June 30 shall be disapproved, except
1 if the appointee is fully qualified for the position and had
. undergone regular screening processes before the Election
Ban as shown in the Promotion and Selection Board (PSB)
report or minutes of meeting.
This Resolution supersedes CSC Resolution No. 010988 dated 4
June 2001 and shall take effect fifteen (15) days after its
publication in a newspaper of general circulation.
Quezon City, August 28, 2003.
Since Resolution No. 030918 was effective at the time Governor
Ong issued the 26 appointments, we must decide this case
based on Resolution No. 030918. Nazareno is not applicable, as
it was decided based on Resolution No. 0109888.
We agree with the Civil Service Commission and the Court of
Appeals that Governor Ong issued Marco's appointment in
accordance with Resolution No. 030918. Although his
appointment was made five (5) days before the end of Governor
Ong's term, Marco was fully qualified for the position and had
undergone regular screening processes before the election ban.
As the Civil Service Commission found, Marco "applied for the
[position of Cooperative Development Specialist II] [and]
passed the screening conducted by the Personnel Selection
Board (PSB) on February 12 & 13, 2004[.]"[132] The Court of
Appeals reiterated this finding in its Decision dated March 2,
2012.[133] Absent a showing of grave abuse of discretion, this
court will not disturb the findings of fact of the Civil Service
Commission,[134]especially since it has acquired "specialized
knowledge and expertise"[135] in the field of civil service law.
Assuming without conceding that Governor Ong's 26
appointments were issued in bulk, this per se does not invalidate
the appointments. Unlike Resolution No. 010988, Resolution No.
030918 does not prohibit appointments that are large in
number. Moreover, 26 appointments can hardly be classified as
"mass appointments," compared with the 89 appointments this
court invalidated in Nazareno.
Marco's appointment was valid. The Civil Service Commission
correctly approved his appointment.
Considering that Marco had already accepted his appointment
by the time the Province prevented him from assuming his
office, his appointment remains effective up to the present.[136]
Consequently, the Civil Service Commission correctly ordered
the Province to reinstate Marco as Cooperative Development
Specialist II and to pay him his back salaries from July 8, 2004
when the Province prevented him from reporting for work up to
his actual reinstatement.

WHEREFORE, the Petition for Review on Certiorari is DENIED.

The Court of Appeals Decision dated March 2, 2012 is affirmed.

SO ORDERED.

Carpio, (Chairperson), Del Castillo, Perez,* and Mendoza, JJ.,

concur.