G.R. No.

83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.

THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

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

vs.

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

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

Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being resolved
jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by
President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order
are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet,
undersecretary or assistant secretary or other appointive officials of the Executive Department may, in
addition to his primary position, hold not more than two positions in the government and government
corporations and receive the corresponding compensation therefor; Provided, that this limitation shall
not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the
Chairman.

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of
the Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must
relinquish the excess position in favor of the subordinate official who is next in rank, but in no case shall
any official hold more than two positions other than his primary position.

Sec. 3. In order to fully protect the interest of the government in government-owned or controlled
corporations, at least one-third (1/3) of the members of the boards of such corporation should either be
a secretary, or undersecretary, or assistant secretary.

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

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

It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of
the Cabinet, along with the other public officials enumerated in the list attached to the petitions as
Annex "C" in G.R. No.

838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment during their
tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284,
petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a temporary restraining order directing
public respondents therein to cease and desist from holding, in addition to their primary positions, dual
or multiple positions other than those authorized by the 1987 Constitution and from receiving any
salaries, allowances, per diems and other forms of privileges and the like appurtenant to their
questioned positions, and compelling public respondents to return, reimburse or refund any and all
amounts or benefits that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted
"absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey
Ordoñez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July
23, 1987 Opinion No. 73, series of 1987,5 declaring that Cabinet members, their deputies
(undersecretaries) and assistant secretaries may hold other public office, including membership in the
boards of government corporations: (a) when directly provided for in the Constitution as in the case of
the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section
8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their
respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25,
1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284.6

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

Sec. 7. . . . . .

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

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further
elucidated and clarified by DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155, series of
1988,10 being the first official construction and interpretation by the Secretary of Justice of Section 13,
Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject of
appointments or designations of an appointive executive official to positions other than his primary
position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated
pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ
Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation
imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so
designated as ex-officio are allowed by the primary functions of the public official, but only to the
holding of multiple positions which are not related to or necessarily included in the position of the public
official concerned (disparate positions).

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

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

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

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

We rule in the negative.

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

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

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

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

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

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

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in
question, the intent of the framers of the Constitution was to impose a stricter prohibition on the
President and his official family in so far as holding other offices or employment in the government or
elsewhere is concerned.

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

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

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

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

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

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

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

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

be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument.17 Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution18 and one section is not to
be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together.19

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction
which will render every word operative, rather than one which may make the words idle and nugatory.20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on
the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to
holding multiple offices or employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices or employment. Verily, wherever the language used in
the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal
negation.21 The phrase "unless otherwise provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-
President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of
Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of
the Constitution must not, however, be construed as applying to posts occupied by the Executive officials
specified therein without additional compensation in an ex-officio capacity as provided by law and as
required22 by the primary functions of said officials' office. The reason is that these posts do no
comprise "any other office" within the contemplation of the constitutional prohibition but are properly
an imposition of additional duties and functions on said officials.23 To characterize these posts
otherwise would lead to absurd consequences, among which are: The President of the Philippines
cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24,
1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense,
Justice, Labor and Employment and Local Government sit in this Council, which would then have no
reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant
secretaries, would also be prohibited.

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

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

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

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

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

The term "primary" used to describe "functions" refers to the order of importance and thus means chief
or principal function. The term is not restricted to the singular but may refer to the plural.33 The
additional duties must not only be closely related to, but must be required by the official's primary
functions. Examples of designations to positions by virtue of one's primary functions are the Secretaries
of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation
and Communications acting as Chairman of the Maritime Industry Authority34 and the Civil Aeronautics
Board.

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

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

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

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

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

While this exchange between Commissioners Monsod and Ople may be used as authority for saying that
additional functions and duties flowing from the primary functions of the official may be imposed upon
him without offending the constitutional prohibition under consideration, it cannot, however, be taken
as authority for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy
between the two Commissioners took place in the plenary session of September 27, 1986. Under
consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on
General Provisions.39 At that time, the article on the Civil Service Commission had been approved on
third reading on July 22, 1986,40 while the article on the Executive Department, containing the more
specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986.41
It was only after the draft Constitution had undergone reformatting and "styling" by the Committee on
Style that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and reworded
"Unless otherwise allowed by law or by the primary functions of his position. . . ."

What was clearly being discussed then were general principles which would serve as constitutional
guidelines in the absence of specific constitutional provisions on the matter. What was primarily at issue
and approved on that occasion was the adoption of the qualified and delimited phrase "primary
functions" as the basis of an exception to the general rule covering all appointive public officials. Had the
Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it
could have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of
the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service
Commission.

That this exception would in the final analysis apply also to the President and his official family is by
reason of the legal principles governing additional functions and duties of public officials rather than by
virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additional
functions and duties "required," as opposed to "allowed," by the primary functions may be considered
as not constituting "any other office."

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail42 as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear.1âwphi1 Debates in the constitutional convention "are of value
as showing the views of the individual members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to
construe the constitution from what appears upon its face."43 The proper interpretation therefore
depends more on how it was understood by the people adopting it than in the framers's understanding
thereof.44

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

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

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

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents
Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local
Government45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo
R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other
offices or employment, as herein defined, in the government, including government-owned or controlled
corporations and their subsidiaries. With respect to the other named respondents, the petitions have
become moot and academic as they are no longer occupying the positions complained of.

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

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

[G.R. No. 120099. July 24, 1996]

EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR.,

respondents.

DECISION

FRANCISCO, J.:

Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez, Jr. (Rodriguez and
Marquez, for brevity) were protagonists for the gubernatorial post of Quezon Province in the May 1992
elections. Rodriguez won and was proclaimed duly-elected governor.

Marquez challenged Rodriguez victory via petition for quo warranto before the COMELEC (EPC No. 92-
28). Marquez revealed that Rodriguez left the United States where a charge, filed on November 12,
1985, is pending against the latter before the Los Angeles Municipal Court for fraudulent insurance
claims, grand theft and attempted grand theft of personal property. Rodriguez is therefore a "fugitive
from justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the Local
Government Code (R.A. 7160), so argued Marquez.

The COMELEC dismissed Marquez quo warranto petition (EPC No. 92-28) in a resolution of February 2,
1993, and likewise denied a reconsideration thereof.

Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition for certiorari,
docketed as G.R. No. 112889. The crux of said petition is whether Rodriguez is a "fugitive from justice" as
contemplated by Section 40(e) of the Local Government Code based on the alleged pendency of a
criminal charge against him (as previously mentioned).

In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC" promulgated on
April 18, 1995, now appearing in Volume 243, page 538 of the SCRA and hereinafter referred to as the
MARQUEZ Decision, declared that:

x x x, fugitive from justice includes not only those who flee after conviction to avoid punishment but
likewise those who, after being charged, flee to avoid prosecution. This definition truly finds support
from jurisprudence (x x x), and it may be so conceded as expressing the general and ordinary
connotation of the term."[1]

Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not passed
upon by the Court. That task was to devolve on the COMELEC upon remand of the case to it, with the
directive to proceed therewith with dispatch conformably with the MARQUEZ Decision. Rodriguez
sought a reconsideration thereof. He also filed an "Urgent Motion to Admit Additional Argument in
Support of the Motion for Reconsideration" to which was attached a certification from the Commission
on Immigration showing that Rodriguez left the US on June 25, 1985 roughly five (5) months prior to the
institution of the criminal complaint filed against him before the Los Angeles court. The Court however
denied a reconsideration of the MARQUEZ Decision.

In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of
governor. This time, Marquez challenged Rodriguez' candidacy via petition for disqualification before the
COMELEC, based principally on the same allegation that Rodriguez is a "fugitive from justice." This
petition for disqualification (SPA No. 95-089) was filed by Marquez on April 11, 1995 when Rodriguez'
petition for certiorari (112889) from where the April 18, 1995 MARQUEZ Decision sprung was still then
pending before the Court.

On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a
Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA No. 95-089 (disqualification
case). In justifying a joint resolution of these two (2) cases, the COMELEC explained that:

1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases;

2. the parties, facts and issue involved are identical in both cases

3. the same evidence is to be utilized in both cases in determining the common issue of whether
Rodriguez is a "fugitive from justice"

4. on consultation with the Commission En Banc, the Commissioners unanimously agreed that a
consolidated resolution of the two (2) cases is not procedurally flawed.

Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in mind
the MARQUEZ Decision definition of "fugitive from justice", found Rodriguez to be one. Such finding was
essentially based on Marquez' documentary evidence consisting of

1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles
Municipal Court against Rodriguez, and

2. an authenticated copy of the felony complaint

which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing of the
case on April 26, 1995 following the COMELEC's denial of Rodriguez' motion for postponement. With the
walk-out, the COMELEC considered Rodriguez as having waived his right to disprove the authenticity of
Marquez' aforementioned documentary evidence. The COMELEC thus made the following analysis:

"The authenticated documents submitted by petitioner (Marquez) to show the pendency of a criminal
complaint against the respondent (Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A.,
and the fact that there is an outstanding warrant against him amply proves petitioner's contention that
the respondent is a fugitive from justice. The Commission cannot look with favor on respondent's
defense that long before the felony complaint was allegedly filed, respondent was already in the
Philippines and he did not know of the filing of the same nor was he aware that he was being proceeded
against criminally. In a sense, thru this defense, respondent implicitly contends that he cannot be
deemed a fugitive from justice, because to be so, one must be aware of the filing of the criminal
complaint, and his disappearance in the place where the long arm of the law, thru the warrant of arrest,
may reach him is predicated on a clear desire to avoid and evade the warrant. This allegation in the
Answer, however, was not even fortified with any attached document to show when he left the United
States and when he returned to this country, facts upon which the conclusion of absence of knowledge
about the criminal complaint may be derived. On the contrary, the fact of arrest of respondent's wife on
November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid for
respondent in that country can hardly rebut whatever presumption of knowledge there is against the
respondent."[2]

And proceeding therefrom, the COMELEC, in the dispositive portion, declared:

"WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is hereby
ordered disqualified or ineligible from assuming and performing the functions of Governor of Quezon
Province. Respondent is ordered to immediately vacate said office. Further, he is hereby disqualified
from running for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate of
candidacy for the May 8, 1995 elections is hereby set aside."

At any rate, Rodriguez again emerged as the victorious candidate in the May 8, 1995 election for the
position of governor.

On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation which the
COMELEC granted on May 11, 1995. The Provincial Board of Canvassers nonetheless proclaimed
Rodriguez on May 12, 1995.

The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11, 1995
Resolution suspending Rodriguez' proclamation thus gave rise to the filing of the instant petition for
certiorari (G.R. No. 120099) on May 16, 1995.

On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation Of Rodriguez To
Proclaim Marquez And To Cite The Provincial Board of Canvassers in Contempt" before the COMELEC (in
EPC No. 92-28 and SPA No. 95-089).

Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified
Rodriguez' proclamation and ordered certain members of the Quezon Province Provincial Board of
Canvassers to explain why they should not be cited in contempt for disobeying the poll body's May 11,
1995 Resolution suspending Rodriguez' proclamation. But with respect to Marquez' motion for his
proclamation, the COMELEC deferred action until after this Court has resolved the instant petition (G.R.
No. 120099).
Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June 23,
1995 Resolution, apart from the May 7 and May 11, 1995 Resolutions (Consolidated Resolution and
Order to suspend Rodriguez' proclamation, respectively).

As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No. 120099)
on July 13, 1995.

Marquez, on August 3, 1995, filed an "Urgent Motion For Temporary Restraining Order Or Preliminary
Injunction" which sought to restrain and enjoin Rodriguez "from exercising the powers, functions and
prerogatives of Governor of Quezon x x x." Acting favorably thereon, the Court in a Resolution dated
August 8, 1995 issued a temporary restraining order. Rodriguez' "Urgent Motion To Lift Temporary
Restraining Order And/Or For Reconsideration" was denied by the Court in an August 15, 1995
Resolution. Another similar urgent motion was later on filed by Rodriguez which the Court also denied.

In a Resolution dated October 24, 1995, the Court

"x x x RESOLVED to DIRECT the Chairman of the Commission on Elections ('COMELEC') to designate a
Commissioner or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible
evidence as herein petitioner Eduardo Rodriguez may be minded to present by way of refuting the
evidence heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which can tend to
establish petitioner's contention that he does not fall within the legal concept of a fugitive from justice.
Private respondent Marquez may likewise, if he so desires, introduce additional and admissible evidence
in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be
applied in the reception of the evidence. The Chairman of the COMELEC shall have the proceedings
completed and the corresponding report submitted to this Court within thirty (30) days from notice
hereof."

The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled
"EVIDENCE OF THE PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating
the parties' evidence, declared that Rodriguez is NOT a "fugitive from justice" as defined in the main
opinion of the MARQUEZ Decision, thus making a 180-degree turnaround from its finding in the
Consolidated Resolution. In arriving at this new conclusion, the COMELEC opined that intent to evade is a
material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case
because evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before
the criminal charge was instituted in the Los Angeles Court (November 12, 1985).

But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent
discomfort" on whether it read and applied correctly the MARQUEZ Decision definition of "fugitive from
justice". So as not to miss anything, we quote the COMELEC's observations in full:

x x x. The main opinion's definition of a 'fugitive from justice includes not only those who flee after
conviction to avoid punishment but also those who, after being charged, flee to avoid prosecution.' It
proceeded to state that:
This definition truly finds support from jurisprudence (Philippine Law Dictionary Third Edition, p. 399 by
F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137 SE 2d 102, 103;
Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v. Casaus, 275 Pacific Reporter 2d p. 792), and it may
be so conceded as expressing the general and ordinary connotation of the term.

But in the majority of the cases cited, the definition of the term 'fugitive from justice' contemplates
other instances not explicitly mentioned in the main opinion. Black's Law Dictionary begins the definition
of the term by referring to a 'fugitive from justice' as:

(A) person, who, having committed a crime, flees from jurisdiction of the court where crime was
committed or departs from his usual place of abode and conceals himself within the district. x x x

Then, citing King v. Noe, the definition continues and conceptualizes a 'fugitive from justice' as:

x x x a person who, having committed or been charged with a crime in one state, has left its jurisdiction
and is found within the territory of another when it is sought to subject him to the criminal process of
the former state. (our emphasis)

In Hughes v. Pflanz, the term was defined as:

a person who, having committed within a state a crime, when sought for, to be subjected to criminal
process, is found within the territory of another state.

Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an:

expression which refers to one having committed, or being accused, of a crime in one jurisdiction and is
absent for any reason from that jurisdiction.

Specifically, one who flees to avoid punishment x x x (Italics ours)

From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight from
justice are: (a) a person committed a 'crime' or has been charged for the commission thereof; and (b)
thereafter, leaves the jurisdiction of the court where said crime was committed or his usual place of
abode.

Filing of charges prior to flight is not always an antecedent requirement to label one a 'fugitive from
justice. Mere commission of a 'crime' without charges having been filed for the same and flight
subsequent thereto sufficiently meet the definition. Attention is directed at the use of the word 'crime'
which is not employed to connote guilt or conviction for the commission thereof. Justice Davide's
separate opinion in G.R. No. 112889 elucidates that the disqualification for being a fugitive does not
involve the issue of the presumption of innocence, the reason for disqualification being that a person
'was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he
was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded
service of sentence because he had jumped bail or escaped. The disqualification then is based on his
flight from justice.
Other rulings of the United States Supreme Court further amplify the view that intent and purpose for
departure is inconsequential to the inquiry. The texts, which are persuasive in our jurisdiction, are more
unequivocal in their pronouncements. In King v. US (144 F. 2nd 729), citing Roberts v. Reilly (116 US 80)
the United States Supreme Court held:

x x x it is not necessary that the party should have left the state or the judicial district where the crime is
alleged to have been committed, after an indictment found, or for the purpose of avoiding an anticipated
prosecution, but that, having committed a crime within a state or district, he has left and is found in
another jurisdiction (Italics supplied)

Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakable language:

The simple fact that they (person who have committed crime within a state) are not within the state to
answer its criminal process when required renders them, in legal intendment, fugitives from justice.

THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE MERE FACT THAT
THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE
PHILIPPINES MAKE PETITIONER A 'FUGITIVE FROM JUSTICE.'

From the foregoing discussions, the determination of whether or not Rodriguez is a fugitive from justice
hinges on whether or not Rodriguez' evidence shall be measured against the two instances mentioned in
the main opinion, or is to be expanded as to include other situations alluded to by the foreign
jurisprudence cited by the Court. In fact, the spirited legal fray between the parties in this case focused
on each camp's attempt to construe the Court's definition so as to fit or to exclude petitioner within the
definition of a 'fugitive from justice'. Considering, therefore, the equally valid yet different
interpretations resulting from the Supreme Court decision in G.R. No. 112889, the Commission deems it
most conformable to said decision to evaluate the evidence in light of the varied constructions open to it
and to respectfully submit the final determination of the case to the Honorable Supreme Court as the
final interpreter of the law."

The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice, the
determination of which, as we have directed the COMELEC on two (2) occasions (in the MARQUEZ
Decision and in the Court's October 24, 1995 Resolution), must conform to how such term has been
defined by the Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice":

"x x x includes not only those who flee after conviction to avoid punishment but likewise who, after
being charged, flee to avoid prosecution."

The definition thus indicates that the intent to evade is the compelling factor that animates one's flight
from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or
punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a
promulgated judgment of conviction.

Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from
the US on June 25, 1985, as per certifications issued by the Bureau of Immigrations dated April 27[3] and
June 26 of 1995,[4] preceded the filing of the felony complaint in the Los Angeles Court on November
12, 1985 and of the issuance on even date of the arrest warrant by that same foreign court, by almost
five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint and
arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant much less
conviction to speak of yet at such time. What prosecution or punishment then was Rodriguez
deliberately running away from with his departure from the US? The very essence of being a "fugitive
from justice" under the MARQUEZ Decision definition, is just nowhere to be found in the circumstances
of Rodriguez.

With that, the Court gives due credit to the COMELEC in having made the. same analysis in its "x x x
COMMISSION'S EVALUATION". There are, in fact, other observations consistent with such analysis made
by the poll body that are equally formidable so as to merit their adoption as part of this decision, to wit:

"It is acknowledged that there was an attempt by private respondent to show Rodriguez' intent to evade
the law. This was done by offering for admission a voluminous copy of an investigation report (Exhibits I
to I-17 and J to J-87 inclusive) on the alleged crimes committed which led to the filing of the charges
against petitioner. It was offered for the sole purpose of establishing the fact that it was impossible for
petitioner not to have known of said investigation due to its magnitude. Unfortunately, such conclusion
misleads because investigations of this nature, no matter how extensive or prolonged, are shrouded with
utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of those who
would be charged. Otherwise, the indiscreet conduct of the investigation would be nothing short of a
well-publicized announcement to the perpetrators of the imminent filing of charges against them. And
having been forewarned, every effort to sabotage the investigation may be resorted to by its intended
objects. But if private respondent's attempt to show Rodriguez' intent to evade the law at the time he
left the United States has any legal consequence at all, it will be nothing more than proof that even
private respondent accepts that intent to evade the law is a material element in the definition of a
fugitive.

"The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against
him were filed cannot overturn the presumption of good faith in his favor. The same suggests nothing
more than the sequence of events which transpired. A subjective fact as that of petitioner's purpose
cannot be inferred from the objective data at hand in the absence of further proof to substantiate such
claim. In fact, the evidence of petitioner Rodriguez sufficiently proves that his compulsion to return to
the Philippines was due to his desire to join and participate vigorously in the political campaigns against
former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the country, the
upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of
the more colorful events in Philippine history. The EDSA Revolution led to the ouster of former Pres.
Marcos and precipitated changes in the political climate. And being a figure in these developments,
petitioner Rodriguez began serving his home province as OIC-Board Member of the Sangguniang
Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and continues to be involved in
politics in the same capacity as re-elected Governor in 1992 and the disputed re-election in 1995.
Altogether, these landmark dates hem in for petitioner a period of relentless, intensive and extensive
activity of varied political campaigns first against the Marcos government, then for the governorship.
And serving the people of Quezon province as such, the position entails absolute dedication of one's
time to the demands of the office.

"Having established petitioner's lack of knowledge of the charges to be filed against him at the time he
left the United States, it becomes immaterial under such construction to determine the exact time when
he was made aware thereof. While the law, as interpreted by the Supreme Court, does not countenance
flight from justice in the instance that a person flees the jurisdiction of another state after charges
against him or a warrant for his arrest was issued or even in view of the imminent filing and issuance of
the same, petitioner's plight is altogether a different situation. When, in good faith, a person leaves the
territory of a state not his own, homeward bound, and learns subsequently of charges filed against him
while in the relative peace and service of his own country, the fact that he does not subject himself to
the jurisdiction of the former state does not qualify him outright as a fugitive from justice.

"The severity of the law construed in the manner as to require of a person that he subject himself to the
jurisdiction of another state while already in his country or else be disqualified from office, is more
apparent when applied in petitioner's case. The criminal process of the United States extends only within
its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject
him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the
United States, petitioner had every right to depart therefrom at the precise time that he did and to
return to the Philippines. No justifiable reason existed to curtail or fetter petitioner's exercise of his right
to leave the United State and return home. Hence, sustaining the contrary proposition would be to
unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances
that brought him within Philippine territory at the time he was sought to be placed under arrest and to
answer for charges filed against him.

"Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later,
and under his circumstances, is there a law that requires petitioner to travel to the United States and
subject himself to the monetary burden and tedious process of defending himself before the country's
courts?

"It must be noted that moral uprightness is not a standard too far-reaching as to demand of political
candidate the performance of duties and obligations that are supererogatory in nature. We do not
dispute that an alleged 'fugitive from justice' must perform acts in order not to be so categorized. Clearly,
a person who is aware of the imminent filing of charges against him or of the same already filed in
connection with acts he committed in the jurisdiction of a particular state, is under an obligation not to
flee said place of commission. However, as in petitioner's case, his departure from the United States may
not place him under a similar obligation. His subsequent knowledge while in the Philippines and non-
submission to the jurisdiction of the former country does not operate to label petitioner automatically a
fugitive from justice. As he was a public officer appointed and elected immediately after his return to the
country, petitioner Rodriguez had every reason to devote utmost priority to the service of his office. He
could not have gone back to the United States in the middle of his term nor could he have traveled
intermittently thereto without jeopardizing the interest of the public he serves. To require that of
petitioner would be to put him in a paradoxical quandary where he is compelled to violate the very
functions of his office."

However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to
urge the Court to re-define "fugitive from justice." They espouse the broader concept of the term as
culled from foreign authorities (mainly of U.S. vintage) cited in the MARQUEZ Decision itself, i.e., that
one becomes a "fugitive from justice" by the mere fact that he leaves the jurisdiction where a charge is
pending against him, regardless of whether or not the charge has already been filed at the time of his
flight.

Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded re-definition of
"fugitive from justice" (which is at variance with the MARQUEZ Decision) and proceed therefrom in
resolving the instant petition. The various definitions of that doctrine have been laid down in People v.
Pinuila, 103 Phil. 992, 999, to wit:

"'Law of the case' has been defined as the opinion delivered on a former appeal. More specifically, it
means that whatever is once irrevocably established as the controlling legal rule of decision between the
same parties in the same case continues to be the law of the case, whether correct on general principles
or not, so long as the facts on which such decision was predicated continue to be the facts of the case
before the court." (21 C.J.S. 330)

"It may be stated as a rule of general application that, where the evidence on a second or succeeding
appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points, or
issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be
considered or readjudicated therein." (5 C.J.S. 1267)

"In accordance with the general rule stated in Section 1821, where, after a definite determination, the
court has remanded the cause for further action below, it will refuse to examine question other than
those arising subsequently to such determination and remand, or other than the propriety of the
compliance with its mandate; and if the court below has proceeded in substantial conformity to the
directions of the appellate court, its action will not be questioned on a second appeal.

"As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether
that decision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a
rehearing." (5 C.J.S. 1276-77).

"Questions necessarily involved in the decision on a former appeal will be regarded as the law of the
case on a subsequent appeal, although the questions are not expressly treated in the opinion of the
court, as the presumption is that all the facts in the case bearing on the point decided have received due
consideration whether all or none of them are mentioned in the opinion." (5 C.J.S. 1286-87).

To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a
"fugitive from justice") are involved in the MARQUEZ Decision and the instant petition. The MARQUEZ
Decision was an appeal from EPC No. 92-28 (the Marquez' quo warranto petition before the COMELEC).
The instant petition is also an appeal from EPC No. 92-28 although the COMELEC resolved the latter
jointly with SPA No. 95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore, what was
irrevocably established as the controlling legal rule in the MARQUEZ Decision must govern the instant
petition. And we specifically refer to the concept of "fugitive from justice" as defined in the main opinion
in the MARQUEZ Decision which highlights the significance of an intent to evade but which Marquez and
the COMELEC, with their proposed expanded definition, seem to trivialize.

Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when
hardly has the ink dried in the MARQUEZ Decision.

To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a
person seeking to run for any elective local position under Section 40(e) of the Local Government Code,
should be understood according to the definition given in the MARQUEZ Decision, to wit:

"A 'fugitive from justice' includes not only those who flee after conviction to avoid punishment but
likewise those who, after being charged, flee to avoid prosecution." (Italics ours.)"

Intent to evade on the part of a candidate must therefore be established by proof that there has already
been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive
from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post.

WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the assailed
Resolutions of the COMELEC dated May 7, 1995 (Consolidated Resolution), May 11, 1995 (Resolution
suspending Rodriguez' proclamation) and June 23, 1995 (Resolution nullifying Rodriguez' proclamation
and ordering the Quezon Province Provincial Board of Canvassers to explain why they should not be
cited in contempt) are SET ASIDE.

SO ORDERED.

[G.R. No. 130872. March 25, 1999]

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

DECISION

BELLOSILLO, J.:

FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the Sandiganbayan of
thirteen (13) counts of estafa through falsification of public documents.[1] They now seek a review of
their conviction as they insist on their innocence.
Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son, his
co-petitioner Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay
Bagong Silang, Municipality of Santa Cruz, and concurrently a member of its Sangguniang Bayan (SB)
representing the Federation of Kabataang Barangays.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code which reads:

Art. 171. Falsification by public officer, employee or notary or ecclesiastical minister. - The penalty of
prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee,
or notary public who, taking advantage of his official position, shall falsify a document by committing any
of the following acts: x x x x 4. Making untruthful statements in a narration of facts.

xxxx

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

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

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

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

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

However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3.019, the Sandiganbayan
acquitted Mayor Francisco Lecaroz. It found that Red was neither authorized to sit as member of the SB
because he was not properly appointed thereto nor had he shown to the mayor sufficient basis for his
alleged right to a seat in the municipal council. On this basis, the court a quo concluded that Mayor
Lecaroz was legally justified in not allowing Red to assume the position of Kagawad.
On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision filed by the
accused. This prompted herein petitioners to elevate their cause to us charging that the Sandiganbayan
erred:

First, in holding that Red had validly and effectively assumed the office of KB Federation President by
virtue of his oath taken before then Assemblywoman Carmencita Reyes on 27 September 1985, and in
concluding that the tenure of accused Lenlie Lecaroz as president of the KB and his coterminous term of
office as KB representative to the SB had accordingly expired;

Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth representative
to the SB had expired, in holding that accused Lenlie Lecaroz could no longer occupy the office, even in a
holdover capacity, despite the vacancy therein;

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

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

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

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

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

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

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

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

xxxx

Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until the last Sunday
of November 1985 or such time that the newly elected officers shall have qualified and assumed office in
accordance with this Constitution.

The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB since he did
not present an authenticated copy of his appointment papers; neither did he take a valid oath of office.
Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member of the SB although in a
holdover capacity since his term had already expired. The Sandiganbayan however rejected this
postulate declaring that the holdover provision under Sec. 1 quoted above pertains only to positions in
the KB, clearly implying that since no similar provision is found in Sec. 7 of B.P. Blg. 51, there can be no
holdover with respect to positions in the SB.

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

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

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

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

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

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

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

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

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

Sec. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in
office until otherwise provided by. proclamation or executive order or upon the designation of their
successors if such appointment is made within a period of one (1) year from February 26, 1986
(underscoring supplied).
Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the provincial
governor forwarded the papers of Jowil Red to then Minister of Interior and Local Government Aquilino
Pimentel, Jr., requesting advice on the validity of the appointment signed by former President Marcos.
The response was the issuance of MILG Provincial Memorandum-Circular No. 86-02[21] and
Memorandum-Circular No. 86-17[22] stating that -

PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02

2. That newly elected KB Federation Presidents, without their respective authenticated appointments
from the president, cannot, in any way, represent their associations in any sangguniang
bayan/sangguniang panlalawigan, as the case may be, although they are still considered presidents of
their federations by virtue of the July 1985 elections.

MEMORANDUM CIRCULAR NO. 86-17

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

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

Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of Presidents
Macapagal, Marcos and Aquino concerning the doctrine of holdover. This consistently expressed the
view espoused by the executive branch for more than thirty (30) years that the mere fixing of the term of
office in a statute without an express prohibition against holdover is not indicative of a legislative intent
to prohibit it, in light of the legal principle that just as nature abhors a vacuum so does the law abhor a
vacancy in the government.[23] Reliance by petitioners on these opinions, as well as on the pertinent
directives of the then Ministry of Interior and Local Government, provided them with an unassailable
status of good faith in holding over and acting on such basis; and,
Fourth. It is difficult to accept that a person, particularly one who is highly regarded and respected in the
community, would deliberately blemish his good name, and worse, involve his own son in a misconduct
for a measly sum of P23,675.00, such as this case before us. As aptly deduced by Justice Del Rosario[24]

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

The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith.[25]
In Cabungcal v. Cordova[26] we affirmed the doctrine that an erroneous interpretation of the meaning of
the provisions of an ordinance by a city mayor does not amount to bad faith that would entitle an
aggrieved party to damages against that official. We reiterated this principle in Mabutol v. Pascual[27]
which held that public officials may not be liable for damages in the discharge of their official functions
absent any bad faith. Sanders v. Veridiano II[28] expanded the concept by declaring that under the law
on public officers, acts done in the performance of official duty are protected by the presumption of
good faith.

In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2)
circumstances which purportedly indicated criminal intent. It pointed out that the name of accused
Lenlie Lecaroz was not in the municipal payroll for the first quincena of 1986 which meant that his term
had finally ended, and that the reinstatement of Lenlie Lecaroz by Mayor Francisco Lecaroz in the payroll
periods from 15 January 1986 and thereafter for the next twelve and a half (12 -1/2) months was for no
other purpose than to enable him to draw salaries from the municipality.[29] There is however no
evidence, documentary or otherwise, that Mayor Francisco Lecaroz himself caused the name of Lenlie
Lecaroz to be dropped from the payroll for the first quincena of January 1986. On the contrary, it is
significant that while Lenlie Lecaroz' name did not appear in the payroll for the first quincena of January
1986, yet, in the payroll for the next quincena accused Lenlie Lecaroz was paid for both the first and
second quincenas, and not merely for the second half of the month which would have been the case if
he was actually "dropped" from the payroll for the first fifteen (15) days and then "reinstated" in the
succeeding payroll period, as held by the court a quo.
From all indications, it is possible that the omission was due to the inadequate documentation of Red's
appointment to and assumption of office, or the result of a mere clerical error which was later rectified
in the succeeding payroll. This however cannot be confirmed by the evidence at hand. But since a doubt
is now created about the import of such omission, the principle of equipoise should properly apply. This
rule demands that all reasonable doubt intended to demonstrate error and not a crime should be
resolved in favor of the accused. If the inculpatory facts and circumstances are capable of two or more
explanations, one of which is consistent with the innocence of the accused and the other with his guilt,
then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.
[30]

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

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

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

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

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

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

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

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

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

SO ORDERED.

[G.R. No. 138489. November 29, 2001]

ELEANOR DELA CRUZ, FEDERICO LUCHICO, JR., SOLEDAD EMILIA CRUZ, JOEL LUSTRIA, HENRY PAREL,
HELENA HABULAN, PORFIRIO VILLENA, JOSEPH FRANCIA, CARMELLA TORRES, JOB DAVID, CESAR MEJIA,
MA. LOURDES V. DEDAL, ALICE TIONGSON, REYDELUZ CONFERIDO, PHILIPPE LIM, NERISSA SANCHEZ,
MARY LUZ ELAINE PURACAN, RODOLFO QUIMBO, TITO GENILO and OSCAR ABUNDO, as members of the
Board of the National Housing Authority from the period covering 1991-1996, petitioners, vs.
COMMISSION ON AUDIT, represented by its Commissioners, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

This petition for certiorari[1] assails the Decision No. 98-381 dated September 22, 1998, rendered by the
Commission on Audit (COA), denying petitioners appeal from the Notice of Disallowance No. 97-011-061
issued by the NHA Resident Auditor on October 23, 1997. Such Notice disallowed payment to petitioners
of their representation allowances and per diems for the period from August 19, 1991 to August 31,
1996 in the total amount of P276,600.00.

Petitioners, numbering 20, were members of the Board of Directors of the National Housing Authority
(NHA) from 1991 to 1996.

On September 19, 1997, the COA issued Memorandum No. 97-038[2] directing all unit
heads/auditors/team leaders of the national government agencies and government-owned and
controlled corporations which have effected payment of any form of additional compensation or
remuneration to cabinet secretaries, their deputies and assistants, or their representatives, in violation
of the rule on multiple positions, to (a) immediately cause the disallowance of such additional
compensation or remuneration given to and received by the concerned officials, and (b) effect the
refund of the same from the time of the finality of the Supreme Court En Banc Decision in the
consolidated cases of Civil Liberties Union vs. Exexcutive Secretary and Anti-Graft League of the
Philippines, Inc. et al. vs. Secretary of Agrarian Reform, et al., promulgated on February 22, 1991.[3] The
COA Memorandum further stated that the said Supreme Court Decision, which became final and
executory on August 19, 1991,[4] declared Executive Order No. 284 unconstitutional insofar as it allows
Cabinet members, their deputies and assistants to hold other offices, in addition to their primary offices,
and to receive compensation therefor.

Accordingly, on October 23, 1997, NHA Resident Auditor Salvador J. Vasquez issued Notice of
Disallowance No. 97-011-061[5] disallowing in audit the payment of representation allowances and per
diems of "Cabinet members who were the ex- officio members of the NHA Board of Directors and/or
their respective alternates who actually received the payments." The total disallowed amount of
P276,600 paid as representation allowances and per diems to each of the petitioners named below,
covering the period from August 19, 1991 to August 31, 1996, is broken down as follows: [6]

NATIONAL HOUSING AUTHORITY

SCHEDULE OF PAID REPRESENTATION/PER DIEM OF THE BOARD OF DIRECTORS

For the period August 19, 1991 to August 31, 1996

AGENCY MEMBERS OF BOARD OF AMOUNT DISALLOWED

DIRECTORS

DOF Eleanor dela Cruz P25,200.00

(1991-1993)

DTI Federico Luchico, Jr. 36,450.00

(1991-1992)

DOF Soledad Emilia Cruz 57,300.00

(1992-1995)

DOLE Joel Lustria 4,500.00

(1992)

DOLE Henry Parel 2,250.00

(1992)

DOF Helena Habulan 4,050.00

(1993-1994)

DOF Porfirio Villena 6,750.00

(1993)

DTI Joseph Francia 73,500.00

(1993-1995)

DOLE Carmela Torres 4,500.00

(1993)

DPWH Job David 6,750.00

(1993-1994)

DPWH Cesar Mejia 3,150.00

(1993)

DOF Ma. Lourdes V. Dedal 2,250.00

(1993)

DTI Alice Tiongson 900.00

(1994)

DOLE Reynaluz Conferido 11,250.00

(1994-1995)

DOLE Philippe Lim 4,500.00

(1994-1995)

DOF Nerissa Sanchez 2,700.00

(1995)

DOF Mary Luz Elaine Puracan 1,800.00

(1995)

DOLE Rodolfo Quimbo 7,200.00

(1995)

DOLE Tito Genilo 14,400.00

(1995)

DPWH Oscar Abundo 7,200.00

(1995-1996) _____________

P276,600.00

============
Petitioners, through then Chairman Dionisio C. Dela Serna of the NHA Board of Directors, appealed from
the Notice of Disallowance to the Commission on Audit[7] based on the following grounds:

1. The Decision of the Supreme Court in Civil Liberties Union and Anti-Graft League of the Philippines,
Inc. was clarified in the Resolution of the Court En Banc on August 1, 1991, in that the constitutional ban
against dual or multiple positions applies only to the members of the Cabinet, their deputies or
assistants. It does not cover other appointive officials with equivalent rank or those lower than the
position of Assistant Secretary; and

2. The NHA Directors are not Secretaries, Undersecretaries or Assistant Secretaries and that they occupy
positions lower than the position of Assistant Secretary.

On September 22, 1998, the COA issued Decision No. 98-381[8] denying petitioners' appeal, thus:

After circumspect evaluation of the facts and issues raised herein, this Commission finds the instant
appeal devoid of merit. It must be stressed at the outset that the Directors concerned were not sitting in
the NHA Board in their own right but as representatives of cabinet members and who are
constitutionally prohibited from holding any other office or employment and receive compensation
therefor, during their tenure (Section 13, Article VII, Constitution; Civil Liberties Union vs. Executive
Secretary, 194 SCRA 317).

It may be conceded that the directors concerned occupy positions lower than Assistant Secretary which
may exempt them from the prohibition (under) the doctrine enunciated in Civil Liberties Union vs.
Executive Secretary, supra. However, their positions are merely derivative; they derive their authority as
agents of the authority they are representing; their power and authority is sourced from the power and
authority of the cabinet members they are sitting for. Sans the cabinet members, they are non-entities,
without power and without personality to act in any manner with respect to the official transactions of
the NHA. The agent or representative can only validly act and receive benefits for such action if the
principal authority he is representing can legally do so for the agent can only do so much as his principal
can do. The agent can never be larger than the principal. If the principal is absolutely barred from
holding any position in and absolutely prohibited from receiving any remuneration from the NHA or any
government agency, for that matter, so must the agent be. Indeed, the water cannot rise above its
source.[9]

Hence, this petition.

Presidential Decree No. 757 is the law "Creating the National Housing Authority and dissolving the
existing housing agencies, defining its powers and functions, providing funds therefor, and for other
purposes." Section 7 thereof provides:
SEC. 7. Board of Directors. - The Authority shall be governed by a Board of Directors, hereinafter referred
to as the Board, which shall be composed of the Secretary of Public Works, Transportation and
Communication, the Director-General of the National Economic and Development Authority, the
Secretary of Finance, the Secretary of Labor, the Secretary of Industry, the Executive Secretary and the
General Manager of the Authority. From among the members, the President will appoint a chairman.
The members of the Board may have their respective alternates who shall be the officials next in rank to
them and whose acts shall be considered the acts of their principals with the right to receive their
benefit: Provided, that in the absence of the Chairman, the Board shall elect a temporary presiding
officer. x x x (Emphasis ours)

It bears stressing that under the above provisions, the persons mandated by law to sit as members of the
NHA Board are the following: (1) the Secretary of Public Works, Transportation and Communications, (2)
the Director-General of the National Economic and Development Authority, (3) the Secretary of Finance,
(4) the Secretary of Labor, (5) the Secretary of Industry, (6) the Executive Secretary, and (7) the General
Manager of the NHA. While petitioners are not among those officers, however, they are alternates of the
said officers, whose acts shall be considered the acts of their principals.

On this point, Section 13, Art. 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 their 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 any
government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.

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
Ombudsman, or as Secretaries, Undersecretaries, Chairmen, or heads of bureaus of offices, including
government-owned or controlled corporations and their subsidiaries.

Interpreting the foregoing Constitutional provisions, this Court, in Civil Liberties Union and Anti-Graft
League of the Philippines, Inc.,[10] held:

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. x x x

xxxxxxxxx

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

xxxxxxxxx

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
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.

xxxxxxxxx

(Emphasis ours)

Since the Executive Department Secretaries, as ex-oficio members of the NHA Board, are prohibited from
receiving extra (additional) compensation, whether it be in the form of a per diem or an honorarium or
an allowance, or some other such euphemism," it follows that petitioners who sit as their alternates
cannot likewise be entitled to receive such compensation. A contrary rule would give petitioners a better
right than their principals.

We thus rule that in rendering its challenged Decision, the COA did not gravely abuse its discretion.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and
MANUEL P. REYES, petitioner,

vs.

HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.

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

BELLOSILLO, J.:

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

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

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

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

for the reason that the appointment of respondent Gordon to the subject posts made by respondent
Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May 1992
Elections.

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

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

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

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall
hold any other office or employment in the Government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations or their subsidiaries.
The section expresses the policy against the concentration of several public positions in one person, so
that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery
of public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or
employee, like the head of an executive department described in Civil Liberties Union v. Executive
Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary
of Agrarian Reform, G.R. No. 83815,6 ". . . . should be allowed to attend to his duties and responsibilities
without the distraction of other governmental duties or employment. He should be precluded from
dissipating his efforts, attention and energy among too many positions of responsibility, which may result
in haphazardness and inefficiency . . . ."

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

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

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective
official to another post if so allowed by law or by the primary functions of his office.8 But, the contention
is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A.
7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the
constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared
unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise
unconstitutional as authority for its validity.

In any case, the view that an elective official may be appointed to another post if allowed by law or by
the primary functions of his office, ignores the clear-cut difference in the wording of the two (2)
paragraphs of Sec. 7, Art.

IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an
appointive official when allowed by law or by the primary functions of his position, the first paragraph
appears to be more stringent by not providing any exception to the rule against appointment or
designation of an elective official to the government post, except as are particularly recognized in the
Constitution itself, e.g., the President as head of the economic and planning agency;9 the Vice-President,
who may be appointed Member of the Cabinet; 10 and, a member of Congress who may be designated
ex officio member of the Judicial and Bar Council. 11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when
drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in
their deliberation, thus —
MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the
prohibition is more strict with respect to elective officials, because in the case of appointive officials,
there may be a law that will allow them to hold other positions.

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

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

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

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

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

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

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

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

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having
authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or designation
of a person, by the person or persons having authority therefor, to fill an office or public function and
discharge the duties of the same. 18 In his treatise, Philippine Political

Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority
vested with the power, of an individual who is to exercise the functions of a given office."

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

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

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

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

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

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

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

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

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

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

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

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

another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his
ineligibility, appointed to other government posts, he does not automatically forfeit his elective office
nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective
official is not eligible to the appointive position, his appointment or designation thereto cannot be valid
in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art.
VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold any
other office or employment in the Government . . . during his term without forfeiting his seat . . . ." The
difference between the two provisions is significant in the sense that incumbent national legislators lose
their elective posts only after they have been appointed to another government office, while other
incumbent elective officials must first resign their posts before they can be appointed, thus running the
risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that
ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is
expressly provided by law that a person holding one office shall be ineligible to another. Such a provision
is held to incapacitate the incumbent of an office from accepting or holding a second office (State ex rel.
Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to
render his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65
NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26
"Where the constitution, or statutes declare that persons holding one office shall be ineligible for
election or appointment to another office, either generally or of a certain kind, the prohibition has been
held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the
second is void (Ala. — State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27
As incumbent elective official, respondent Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a
legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of
Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de
facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and
justice, will hold valid so far as they involve the interest of the public and third persons, where the duties
of the office were exercised . . . . under color of a known election or appointment, void because the
officer was not eligible, or because there was a want of power in the electing or appointing body, or by
reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being
unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs.
Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

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

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

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

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

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

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

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for
the first year of its operations from the effectivity of this Act, the Mayor of the City of Olongapo shall be
appointed as the chairman and chief executive officer of the Subic Authority," is declared
unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo City,
respondent Richard J. Gordon, is INVALID, hence NULL and VOID.
However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as
such Chairman and Chief Executive Officer may be retained by him, and all acts otherwise legitimate
done by him in the exercise of his authority as officer de facto of SBMA are hereby UPHELD.

SO ORDERED.

A.M. No. P-88-269 December 29, 1995

OSCAR ABETO, complainant,

vs.

MANUEL GARCESA, Stenographic Reporter, Regional Trial Court, Branch 45, Bacolod City, respondent.

DAVIDE, JR., J.:

In a verified complaint dated 19 October 1988 and received by the Office of the Court Administrator on
18 November 1988, the complainant charges the respondent with having misrepresented himself as a
full-fledged lawyer and having acted as one of the authorized representatives of the complainant and his
co-complainants in labor cases filed with Regional Arbitration Branch VI of the National Labor Relations
Commission (NLRC) of Bacolod City despite the fact that he is a court employee.

Then Deputy Court Administrator Meynardo A. Tiro referred the complaint to the respondent through
the Presiding Judge of Branch 45 of the Regional Trial Court (RTC) of Bacolod City and required him to
comment thereon.

In his Comment/Explanation, the respondent admits having assisted the complainants in the
aforementioned labor cases; denies having misrepresented himself as a lawyer; and explained the
nature of the assistance he had given to the complainants. According to him, when he first met
complainant Abeto in December 1986, he frankly informed the latter that he is only a court employee
and that he is only assisting or helping Mr. Arturo Ronquillo, for at that time no lawyer dared to assist the
complainants in filing their cases. This Arturo Ronquillo is the Vice President of the Workers
Amalgamated Union of the Philippines (WAUP) whose assistance was sought by complainant Abeto and
the other complainants in the labor cases for the filing and prosecution of their cases. The respondent
further alleges that the instant complaint arose out of ill-feeling and is designed to malign and destroy
his name and reputation as a court employee. He manifests, however, that "in the event that his good
motives and intentions in helping the poor and downtrodden workers/employees of BISCOM Central
would be considered not in consonance with Memorandum Circular No. 17 dated September 4, 1986
issued by the Executive Department and is prohibited by Administrative Circular No. 5 issued by the
Supreme Court, Manila, then [he] will readily and obediently submit to the sound discretion of the
Honorable Supreme Court."
On 28 August 1989, then Deputy Court Administrator Juanito Bernad submitted a memorandum
recommending that the complaint against the respondent for misrepresentation be dismissed, but that
he be advised to heed the Civil Service Rules and this Court's memorandum circular prohibiting
government employees from engaging in any private business, vocation, or profession without
permission from this Court.

In his Letter-Petition dated 11 July 1995, the respondent asked for an early resolution of this case, which
he considers baseless as it is but an offshoot of a petty misunderstanding between him and the
complainant. He also invited the attention of this Court to the complainant's affidavit of desistance and
letter to the Court requesting that this case be dismissed. He later submitted the said affidavit and letter.

In the resolution of 18 September 1995, this Court directed the Office of the Court Administrator to
reevaluate this case and to submit a report thereon.

On 13 October 1995, Deputy Court Administrator Zenaida N. Elepaño submitted a Memorandum, duly
approved by the Court Administrator, wherein she made the following findings and conclusion:

It is worth mentioning here Sec. 12, Rule XVIII of the Revised Civil Service Rules which provides that:

Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or
be connected with any commercial, credit, agricultural or industrial undertaking without a written
permission from the head of Department: Provided, That this prohibition will be absolute in the case of
those officers and employees whose duties and responsibilities require that their entire time be at the
disposal of the Government: Provided, further, That if an employee is granted permission to engage, in
outside activities, the time so devoted outside of office hours should be fixed by the chief of the agency
to the end that it will not impair in any way the efficiency of the officer or employee: And provided,
finally, That no permission is necessary in the case of investments, made by an officer or employee,
which do not involve any real or apparent conflict between his private interests and public duties, or in
any way influence him in the discharge of his duties, and he shall not take part in the management of the
enterprise or become an officer or member of the board of directors.

Moreover in Administrative Circular No. 5 dated 4 October 1988 the Court expressed the view that

The entire time of Judiciary officials and employees must be devoted to government service to insure
efficient and speedy administration of justice considering the express prohibition in the Rules of Court
and the nature of their work which requires them to serve with the highest degree of efficiency and
responsibility, in order to maintain public confidence in the Judiciary.

These circumstances obtaining, we believe that the stenographer Garcesa merits at the very least a
reprimand for engaging in a limited law practice. (emphasis supplied)

She then recommends:

IN VIEW OF THE FOREGOING, it is respectfully recommended that the penalty of REPRIMAND be

imposed on Manuel Garcesa, Stenographer Reporter, RTC, Branch 45, Bacolod City for failure to heed the
abovequoted Civil Service rule and the Supreme Court Administrative Circular which prohibits
government employees from engaging in any private business, vocation, or profession without
permission from the Court.

We agree with the recommendation of Deputy Court Administrator Elepaño. Indeed, per Annex "A" of
the complaint, the respondent and one Arturo Ronquillo signed as "Authorized Representatives" of the
complainants in an Ex-Parte Formal Manifestation dated 11 August 1988 in the following labor cases:
RAB VI Cases Nos. 0272-86, 0304-86, 01-0067-87, 06-0295-87, and 04-0202-87. And in his
Comment/Explanation, he admitted having given or extended "casual assistance" to Mr. Arturo Ronquillo
in the filing and prosecution of the said cases. His justification therefor — to help the poor and
downtrodden workers of BISCOM Central — will not absolve him from administrative liability for the
violation of Section 12, Rule XVIII of the Revised Civil Service Rules and of the rulings of this Court in
Valdez and in Rabanal which were incorporated in Administrative Circular No. 5 of 4 October 1988.

He could not, however, be liable for unauthorized practice of law, since there is no convincing evidence
that he misrepresented himself as a lawyer. Moreover, his appearance was in his capacity as one of the
representatives of the complainants in the labor cases and not as a lawyer. Under Section 6, Rule IV of
the Revised Rules of Procedure of the NLRC in force at that time, a non-lawyer may appear before the
NLRC or any Labor Arbiter if he represents himself as a party to the case, represents an organization or
its members, or is a duly accredited member of a free legal aid staff of the Department of Labor and
Employment or of any other legal aid office accredited by the Department of Justice or the Integrated
Bar of the Philippines.

Neither could he be liable under Memorandum Circular No. 17 dated 4 September 1986 of the Office of
the President declaring that the authority to grant permission to any official or employee to engage in
outside activities shall be granted by the head of the ministry (department) or agency in accordance with
Section 12, Rule XVIII of the Revised Civil Service Rules. Said Memorandum Circular No. 17 was declared
by this Court inapplicable to officials or employees of the courts. Thus, in its Administrative Circular No. 5
dated 4 October 1988, this Court stated:

However, in its En Banc resolution dated October 1, 1987, denying the request of Atty. Froilan L. Valdez
of the Office of Associate Justice Ameurfina Melencio-Herrera, to be commissioned as a Notary Public,
the Court expressed the view that the provisions of Memorandum Circular No. 17 of the Executive
Department are not applicable to officials or employees of the courts considering the express prohibition
in the Rules of Court and the nature of their work which requires them to serve with the highest degree
of efficiency and responsibility, in order to maintain public confidence in the Judiciary. The same policy
was adopted in Administrative Matter No. 88-6-002-SC, June 21, 1988, where the court denied the
request of Ms. Esther C. Rabanal, Technical Assistant II, Leave Section, Office of the Administrative
Services of this Court, to work as an insurance agent after office hours including Saturdays, Sundays and
holidays. Indeed, the entire time of Judiciary officials and employees must be devoted to government
service to insure efficient and speedy administration of justice.
ACCORDINGLY, all officials and employees of the Judiciary are hereby enjoined from being commissioned
as insurance agents or from engaging in any such related activities, and, to immediately desist therefrom
if presently engaged thereat.

This prohibition is directed against "moonlighting," which amounts to malfeasance in office (Biyaheros
Mart Livelihood Association, Inc. vs. Cabusao, 232 SCRA 707 [1994]).

WHEREFORE, for malfeasance in office consisting in the violation of Section 12, Rule XVIII of the Revised
Civil Service Rules and of the rulings of this Court of 1 October 1987 in the case of Atty. Froilan L. Valdez
and of 21 June 1988 in the case of Ms. Esther C. Rabanal embodied in Administrative Circular No. 5
dated 4 October 1988, respondent MANUEL GARCESA is hereby REPRIMANDED and warned that the
commission of the same or similar acts in the future shall be dealt with more severely.

SO ORDERED.

[A.M. No. P-97-1247. May 14, 1997]

(Formerly A.M. OCA I.P.I.1 No. P-97-1247)

NARITA RABE, complainant, vs. DELSA M. FLORES, Interpreter III, RTC, Branch IV, Panabo, Davao,
respondent.

DECISION

PER CURIAM:

In an administrative complaint for "Conduct Unbecoming a Government Employee, Acts Prejudicial to

the Interest of the Service and Abuse of Authority" dated August 18, 1995, Complainant Narita Rabe,2 by
counsel, charged Respondent Delsa M. Flores, Interpreter III at the Regional Trial Court, Branch IV,
Panabo, Davao, as follows:3

"(Mrs.) Flores took advantage of her position as a court employee by claiming a stall at the extension of
the Public Public (sic) Market when she is (sic) not a member of our client's association and was never a
party to Civil Case No. 89-23. She herself knows (sic) that the stalls in the said area had already been
awarded to our client's members pursuant to the decision of the court on October 30, 1991. Worse, she
took the law into her hands when she destroyed the stall of our client and brought the materials to the
police station of Panabo, Davao."

After respondent filed her answer, the Court issued a Resolution dated January 17, 1996, absolving her
of the charge. In the same resolution, however, the Court required respondent to explain why she should
not be administratively dealt with for the following:4
"x x x a) why she obtained a certification dated June 18, 1991 issued by Atty. Victor R. Ginete, Clerk of
Court, same court, that she started performing her duties as (an) interpreter on May 16, 1991 when (1)
according to a certification dated June 17, 1991 issued by Mr. Jose B. Avenido, Municipal Treasurer,
Panabo Davao, she was employed in the office of the Municipal Assessor as Assessment Clerk I since
February 1, 1990 to June 3, 1991 with her last salary being paid by said office on June 3, 1991; and (2)
she took her oath of office before Judge Mariano C. Tupas only on June 17, 1991;

b) why she did not report said business interest in her sworn statement of Assets, Liabilities and Net
Worth, Disclosure of Business Interests and Financial Connections, and Identification of Relatives in the
Government Service for the years 1991, 1992, 1993, and 1994;

c) why she has not divested herself of her interest in said business within sixty (60) days from her
assumption into (sic) office; and

d) why she has indicated in her DTRs for August 1995 that she worked on August 15-18, 21, 23-25 and
28-31 and for September, 1995 that she worked for all its twenty one (21) working days when her
Contract of Lease with the Municipal Government of Panabo for the market stall in its Section 7 clearly
states that she has to personally conduct her business and be present at the stall otherwise the same
would be canceled as per its Section 13."

Respondent Flores, in a letter dated February 13, 1996, explains that, as stated in the certification of Atty.
Ginete, she assumed her job in the Regional Trial Court, Branch IV, Panabo, Davao on May 16, 1991, in
compliance with the directive from this Court for her to start working on the said date. Respondent
further states that "even prior to said date (May 16, 1991)" she already reported to the court in order to
familiarize herself with the scope of her duties.5

Respondent Flores also admits that she had received from the municipality a salary for the period May
16 1991 May 31, 1991, notwithstanding her transfer to the judiciary on May 16, 1991. She submits,
however, the following justification:6

"I admit that I received my last salary in the amount of One Thousand and 80/100 (P1,000.80) Pesos
from the Local Government Unit from May 16-31, 1991 but farthest from my mind is the intent to
defraud the government. It was my desire all the time to refund the amount the moment my salary is
received from the Supreme Court, unfortunately more often than not (the salary) is received three or
four months after assumption of office.

As we all know the month of May and June is the time we enroll our children in school thus the money I
got that month from the Local Government Unit came handy in defraying registration expenses of my
four children. The passage of time coupled with some intervening events, made me oblivious of my
obligation to refund the money. However, when my attention was called on the day I received the copy
of the resolution, I took no time in refunding the same."

Respondent alleges that the certification of Municipal Treasurer Jose V. Avenido is inaccurate because it
was on January 25, 1990 that she was appointed as Assessment Clerk I.7 According to respondent, she
took her oath on June 17, 1991, simply because it was on that date that she received a copy of her oath
form.8

Respondent avers that she did not divulge any business interest in her Sworn Statement of Assets and
Liabilities and Financial Disclosure for the years 1991-1994 because she "was never engaged in business
during said period although I had a stall in the market."9

Respondent further avers that her Daily Time Record indicated that she held office on August 15, 18, 21,
23 to 25 and 28, 31 and all the working days of September, 1995 "because in truth and in fact x x x (she)
did hold office on those days." This was because her contract of lease with the Municipal Government of
Panabo was never implemented as it became the subject of "Civil Case No. 95-53 -- Panabo Public
Market Vendors Assn. Inc. and Pag-ibig Ng Gulayan Ass. Inc. Vs. Municipality of Panabo, et al., for
Declaration of Nullity of Mun. Ord. No. XLV, Series of 1994."10

The Court referred the matter to the Office of the Court Administrator for evaluation, report and
recommendation. In its report, the OCA found respondent guilty of dishonesty and failure to report her
business interest, and recommended that the penalty of dismissal be imposed on her. The Court finds
that the report and recommendation of the OCA is in accord with the evidence and the law. We hold the
explanation of respondent unsatisfactory. Respondent's misconduct is evident from the records.

By her own admission, respondent had collected her salary from the Municipality of Panabo for the
period of May 16-31, 1991, when she was already working at the RTC. She knew that she was no longer
entitled to a salary from the municipal government, but she took it just the same. She returned the
amount only upon receipt of the Court Resolution dated January 17, 1996, or more than five (5) years
later. We cannot countenance the same. Respondent's conduct is plain dishonesty.

Her explanation, as observed earlier, is unsatisfactory. Her overriding need for money from the municipal
government, aggravated by the alleged delay in the processing of her initial salary from the Court, does
not justify receipt of a salary not due her. We sympathize with respondent's sad plight of being the sole
breadwinner of her family, with her husband and parents to feed and children to send to school. This,
however, is not an acceptable excuse for her misconduct. If poverty and pressing financial need could
justify stealing, the government would have been bankrupt long ago. A public servant should never
expect to become wealthy in government.

But there is really more to respondents' defense of poverty. If respondent was just driven by dire
pecuniary need, respondent should have returned the salary she had obtained from the Municipal
Government of Panabo as soon as she obtained her salary from the court. However, she returned the
money only after receipt of the Court's Resolution dated January 17, 1996, saying that she forgot all
about it. Forgetfulness or failure to remember is never a rational or acceptable explanation.

In Macario Flores vs. Nonilon Caniya, Deputy Sheriff, RTC, Imus, Cavite,11 this Court ruled that a sheriff
who failed to issue an official receipt for the money entrusted to him for the purpose of satisfying a
judgment debt, "had really wanted to misappropriate the said amount." Inevitably, he was dismissed
from service with forfeiture of all retirement benefits and accrued leave credits, with prejudice to re-
employment in any branch or instrumentality of the government, including government-owned or
controlled corporations.

It is well to stress once again the constitutional declaration that a "(p)ublic office is a public trust. Public
officers and employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives."12

We have repeatedly held that although every office in the government service is a public trust, no
position exacts a greater demand for moral righteousness and uprightness from an individual than in the
judiciary. Personnel in the judiciary should conduct themselves in such a manner as to be beyond
reproach and suspicion, and free from any appearance of impropriety in their personal behavior, not
only in the discharge of their official duties but also in their everyday life. They are strictly mandated to
maintain good moral character at all times and to observe irreproachable behavior so as not to outrage
public decency.13

This Court, in JPDIO vs. Josephine Calaguas, Records Officer, OCC, MTCC, Angeles City,14 held:

"The Court must reiterate that a public office is a public trust. A public servant is expected to exhibit, at
all times, the highest degree of honesty and integrity and should be made accountable to all those
whom he serves."

Respondent's malfeasance is a clear contravention of the constitutional dictum that the State shall
"maintain honesty and integrity in the public service and take positive and effective measures against
graft and corruption."15

Under the Omnibus Rules Implementing Book V of EO No. 292 known as the "Administrative Code of
1987" and other pertinent Civil Service Laws, the penalty for dishonesty is dismissal, even for the first
offense.16 Accordingly, for respondent's dishonesty in receiving and keeping what she was not lawfully
entitled to, this Court has the duty to impose on her the penalty prescribed by law: dismissal.

Apart from the above finding, we also note the contradiction between the certification issued by
Municipal Treasurer Jose Avenido stating that respondent had worked as an assessment clerk in his
office up to June 3, 1991, and the certification of Clerk of Court Victor Ginete stating that respondent
started working as an interpreter on May 16, 1991. Although specifically asked by the Court to explain
this contradiction, respondent could only state that the certification of the treasurer is inaccurate
because she assumed her position as Assessment Clerk on January 25, 1990 and not on February 1, 1990
as written in the said certification. Respondent, however, failed to explain the gravamen of the inquiry,
i.e., that she was certified to be still connected with the Municipal Government of Panabo on June 3,
1991, notwithstanding her assumption of her post in the Regional Trial Court as early as May 16, 1991.
To the mind of the Court, respondent's inability to explain this discrepancy is consistent with her failure
to satisfactorily explain why she knowingly received and kept a salary she was not entitled to. Worse, it
may be indicative of a conscious design to hold two positions at the same time.
Aside from dishonesty, however, respondent is also guilty of failure to perform her legal obligation to
disclose her business interests. Respondent herself admitted that she "had a stall in the market." The
Office of the Court Administrator also found that she had been receiving rental payments from one
Rodolfo Luay for the use of the market stall. That respondent had a stall in the market was undoubtedly a
business interest which should have been reported in her Sworn Statement of Assets and Liabilities. Her
failure to do so exposes her to administrative sanction.

Section 8 of Republic Act No. 6713 provides that it is the "obligation" of an employee to submit a sworn
statement, as the "public has a right to know" the employee's assets, liabilities, net worth and financial
and business interests. Section 11 of the same law prescribes the criminal and administrative penalty for
violation of any provision thereof. Paragraph (b) of Section 11 provides that "(b) Any violation hereof
proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public
official or employee, even if no criminal prosecution is instituted against him."

In the present case, the failure of respondent to disclose her business interest which she herself
admitted is inexcusable and is a clear violation of Republic Act No. 6713.

The respondent's claim that her contract of lease of a market stall was never implemented because it
became the subject of a civil case, fails to convince us. We agree with the finding of the OCA on
respondent's guilt for this separate offense. It is a finding, which further supports its recommendation
for respondent's dismissal, to wit:17

"The case respondent is referring to was filed in 1995. This can be seen from the number of the case
which is 95-93. Earlier than the filing of the case, respondent was already collecting rentals -- as early as
February 22, 1991 -- from one Rodolfo Luay who was operating a business without the necessary license.

Respondent should have, therefore, indicated in her 'Sworn Statement of Assets, Liabilities and Net
Worth, Disclosure of Business Interests and Financial Connections, and Identification of Relatives in the
Government Service' for the years 1991, 1992, 1993, 1994 and 1995 that she had a market stall in the
Public market of Panabo, Davao.

She admits that she never indicated such in her sworn statements.

As this Office had earlier stated in its Memorandum dated November 10, 1995 filed in connection with
the instant complaint:

'Such non-disclosure is punishable with imprisonment not exceeding five (5) years, or a fine not
exceeding five thousand (P5,000.00) pesos, or both. But even if no criminal prosecution is instituted
against the offender, the offender can be dismissed from the service if the violation is proven.
Respondent 201 file speaks for itself.

Furthermore, respondent should have divested herself of her interest in said business within sixty (60)
days from her assumption into (sic) office. She has not. The penalty for non-disclosure of business
interests and non-divestment is the same."' (Citations omitted.)
In her explanation, respondent maintains the position that she has no business interest, implicitly
contending that there is nothing to divulge or divest from. As discussed above, respondent had a
business interest. We do not find her administratively liable, however, for failure to divest herself of the
said interest. The requirement for public officers, in general, to divest themselves of business interests
upon assumption of a public office is prompted by the need to avoid conflict of interests.18 In the
absence of any showing that a business interest will result in a conflict of interest, divestment of the
same is unnecessary. In the present case, it seems a bit far-fetched to imagine that there is a conflict of
interest because an Interpreter III of the Regional Trial Court has a stall in the market. A court, generally,
is not engaged in the regulation of a public market, nor does it concern itself with the activities thereof.
While respondent may not be compelled to divest herself of her business interest, she had the legal
obligation of divulging it.

WHEREFORE, in conformity with the recommendations of the Office of the Court Administrator,
Interpreter III Delsa M. Flores is hereby DISMISSED from service with FORFEITURE of all retirement
benefits and accrued leave credits and with PREJUDICE to re-employment in any branch or
instrumentality of the government, including government-owned or controlled corporations.

SO ORDERED.

G.R. No. 111471 September 26, 1994

CITY MAYOR ROGELIO R. DEBULGADO and VICTORIA T. DEBULGADO, petitioners,

vs.

CIVIL SERVICE COMMISSION, respondent.

Marlon P. Ontal for petitioners.

FELICIANO, J.:

Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, Negros Occidental. On
1 October 1992, petitioner Mayor appointed his wife, petitioner Victoria T. Debulgado, as General
Services Officer, that is, as head of the Office of General Services 1 of the City Government of San Carlos.

Petitioner Victoria was one of three (3) employees of the City Government who were considered for the
position of General Services Officer. Before her promotion in 1992, she had been in the service of the
City Government for about thirty-two (32) years. She joined the City Government on 3 January 1961 as
Assistant License Clerk. Through the years, she rose from the ranks, successively occupying the following
positions:
(a) Assistant Chief of the License & Fees Division, from 1 July 1965 to 30 June 1973;

(b) Chief of the License and Fees Division, from 1 July 1973 to 1 January 1981;

(c) Cashier, from 2 January 1981 to 30 June 1989; and

(d) Cashier IV, from 1 July 1989 to 30 September 1992. 2

On 1 October 1992, petitioner Victoria assumed the new post, and commenced discharging the
functions, of General Services Officer of San Carlos City and receiving the regular salary attached to that
position.

On 16 December 1992, public respondent Civil Service Commission ("Commission") received a letter 3
from Congressman Tranquilino B. Carmona of the First District of Negros Occidental, calling attention to
the promotional appointment issued by petitioner Mayor in favor of his wife.

The Commission directed its Regional Office No. 6-Iloilo City to submit a report on the appointment of
petitioner Victoria.

From the report submitted by Director Jesse J. Caberoy of the Iloilo City-CSRO No. 6, the Commission
found that petitioner Mayor was the lawful husband of the appointee, petitioner Victoria, the two (2)
having been married sometime in 1964. Director Caberoy also reported that the appointment papers
prepared by the Office of the City Mayor of San Carlos were submitted to the Bacolod City CSC-Field
Office on 28 October 1992, and that the appointment was thereafter approved by Director Purita H.
Escobia of that CSC-Field Office, on 18 November 1992.

Acting on the report of Director Caberoy, the Commission, in its Resolution No. 93-1427 dated 13 April
1993, recalled the approval issued by Director Escobia and disapproved the promotion of petitioner
Victoria to the position of General Services Officer of San Carlos City upon the ground that that
promotion violated the statutory prohibition against nepotic appointments.

On 14 June 1993, petitioner Mayor and petitioner Victoria received a copy of Resolution No. 93-1427 of
the Commission. 4 Petitioners moved for reconsideration, contending that the statutory prohibition
against nepotism was not applicable to the appointment of Victoria as General Services Officer.
Petitioners also asserted that the Commission had deprived petitioner Victoria of her right to due
process by unilaterally revoking her appointment. The motion for reconsideration was denied by the
Commission on 21 July 1993.

In this Petition for Certiorari, petitioner Mayor and petitioner Victoria contend that the Commission had
gravely abused its discretion in withdrawing and disapproving petitioner Victoria's promotional
appointment. Petitioners assert that Victoria can no longer be removed from the position of General
Services Officer without giving her an opportunity to be heard and to answer the charged of nepotism.

Petitioner Mayor denies that he had been motivated by personal reasons when he appointed his wife to
the new post. He states that his wife was the most qualified among the candidates for appointment to
that position, she having worked for the City Government for thirty-two (32) years and being highly
recommended by the OIC-Treasurer of San Carlos City. 5 It is also claimed by petitioner Mayor that his
choice of his wife for the position was concurred in by the Sangguniang Panglungsod. 6 He further avers
that he had consulted the Field and Regional Officers of the Commission in Bacolod City, and raised the
question of applicability of the prohibition against nepotism to the then proposed promotion of his wife
in one of the seminars conducted by the Commission's Regional Office held in San Carlos City on 21 and
22 September 1992. According to petitioner Mayor, one Gregorio C. Agdon, a supervising personnel
specialist in the Commission's Bacolod Office, informed him that the promotional appointment was not
covered by the prohibition. 7

The basic contention of petitioners is that the prohibition against nepotic appointments is applicable
only to original appointments and not to promotional appointments. They believe that because
petitioner Victoria was already in the service of the City Government before she married petitioner
Mayor, the reason behind the prohibition no longer applied to her promotional appointment. Petitioners
also affirm that petitioner Victoria deserves to be promoted to General Services Officer, considering her
long and faithful service to the City Government. 8

The task before this Court is, accordingly, two-fold:

(1) to determine whether a promotional appointment is covered by the legal prohibition against
nepotism, or whether that prohibition applies only to original appointments to the Civil Service; and

(2) to determine whether the Commission had gravely abused its discretion in recalling and
disapproving the promotional appointment given to petitioner Victoria after the Commission, through
Director Escobia, had earlier approved that same appointment, without giving an opportunity to
petitioner Victoria to explain her side on the matter.

The prohibitory norm against nepotism in the public service is set out in Section 59, Book V of the
Revised Administrative Code of 1987 (also known as E.O. No. 292). Section 59 reads as follows:

Sec. 59. Nepotism — (1) All appointments in the national, provincial, city and municipal governments or
in any branch or instrumentality thereof, including government-owned or controlled corporations, made
in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office,
or of the persons exercising immediate supervision over him, are hereby prohibited.

As used in this Section the word "relative" and members of the family referred to are those related
within the third degree either of consanguinity or of affinity.

(2) The following are exempted from the operation of the rules on nepotism: (a) persons employed
in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the
Philippines: Provided, however, That in each particular instance full report of such appointment shall be
made to the Commission.
The restriction mentioned in subsection (1) shall not be applicable to the case of a member of any family
who, after his or her appointment to any position in an office or bureau, contracts marriage with
someone in the same office or bureau, in which event the employment or retention therein of both
husband and wife may be allowed.

(3) In order to give immediate effect to these provisions, cases of previous appointment which are
in contravention hereof shall be corrected by transfer and pending such transfer, no promotion or salary
increase shall be allowed in favor of the relative or relatives who were appointed in violation of these
provisions. (Emphasis supplied).

Section 6 of Rule XVIII, of the "Omnibus Rules Implementing Book V of Executive Order No. 292 and
other Pertinent Civil Service Laws," issued on 27 December 1991, implementing, among other things, the
abovequoted Section 59, provides as follows:

Sec. 6. No appointments in the national, provincial, city and municipal government or in any branch or
instrumentality thereof, including government-owned or controlled corporations with original charters
shall be made in favor of a relative of the appointing or recommending authority, or of the chief of the
bureau or office, or of the persons exercising immediate supervision over the appointee.

Unless otherwise specifically provided by law, as used in this Section, the word "relative" and the
members of the family referred to are those related within the third degree either of consanguinity or of
affinity.

The following are exempted from the operation of the rules on nepotism: (a) persons employed in a
confidential capacity; (b) teachers; (c) physicians; (d) members of the Armed Forces of the Philippines.
Provided, however, That in each particular instance full report of such appointment shall be made to the
Commission.

The restriction mentioned in the first paragraph of this Section shall not be applicable to the case of a
member of any family who after his or her appointment to any position in an office or bureau, contracts
marriage with someone in the same office or bureau, in which event the employment or retention
therein of both husband and wife may be allowed.

Cases of previous appointment which are in contravention hereof shall be corrected by transfer, and
pending such transfer no promotion or salary increase shall be allowed in favor of the relative or
relatives who were appointed in violation of these provisions. (Emphasis supplied)

It will be noted that the abovequoted Section 6 of Implementing Rule XVIII essentially tracks the
provisions of Section 59, Book V of E.O. No. 292. 9

We turn, therefore, to an analysis of Section 59, Book V of E.O. No. 292, quoted above. The noteworthy
fact may be pointed out, at the outset, that Section 59 as it exists today has been in our statute books in
substantially identical form and language for at least thirty (30) years. 10
A textual examination of Section 59 at once reveals that the prohibition was cast in comprehensive and
unqualified terms. Firstly, it explicitly covers "all appointments", without seeking to make any distinction
between differing kinds or types of appointments. Secondly, Section 59 covers all appointments to the
national, provincial, city and municipal government, as well as any branch or instrumentality thereof and
all government owned or controlled corporations. Thirdly, there is a list of exceptions set out in Section
59 itself, but it is a short list:

(a) persons employed in a confidential capacity;

(b) teachers;

(c) physicians; and

(d) members of the Armed Forces of the Philippines.

The list has not been added to or subtracted from for the past thirty (30) years. The list does not contain
words like "and other similar positions." Thus, the list appears to us to be a closed one, at least closed
until lengthened or shortened by Congress.

Section 59 of Book V, E.O. No. 292 should, of course, be read in connection with the Omnibus
Implementing Rules. Additional light is shed on the issue we here address by some provisions of these
Rules. Section 1, Rule V of the Omnibus Implementing Rules reads as follows:

Sec. 1. All appointments in the career service shall be made only according to merit and fitness to be
determined as far as practicable by competitive examinations.

As used in these Rules, any action denoting movement or progress of personnel in the civil service shall
be known as personnel action. Such action shall include promotion, transfer, reinstatement,
reemployment, detail, secondment, reassignment, demotion and separation. All original appointments
and personnel actions shall be in accordance with these Rules and with other regulations and standards
that may be promulgated by the Commission. (Emphasis supplied)

Section 1, Rule VII of the same Rules also bears upon our inquiry:

Sec. 1. The following constitute personnel actions: original appointment, appointment through
certification, promotion, transfer, reinstatement, reemployment, detail, secondment, demotion and
separation. (Emphasis supplied)

Under the abovequoted provisions of the Implementing Rules, both an original appointment and a
promotion are particular species of personnel action. The original appointment of a civil service
employee and all subsequent personnel actions undertaken by or in respect of that employee such as
promotion, transfer, reinstatement, reemployment, etc., must comply with the Implementing Rules
including, of course, the prohibition against nepotism in Rule XVIII. To the extent that all personnel
actions occurring after an original appointment, require the issuance of a new appointment to another
position (or to the original position in case of reinstatement), we believe that such appointment must
comply with all applicable rules and prohibitions, including the statutory and regulatory prohibition
against nepotism. To limit the thrust of the prohibition against nepotism to the appointment issued at
the time of initial entry into the government service, and to insulate from that prohibition appointments
subsequently issued when personnel actions are thereafter taken in respect of the same employee,
would be basically to render that prohibition, in the words of Laurel V, etc. v. Civil Service Commission,
11 "meaningless and toothless."

Inquiry into the basic purpose or objective of the prohibition against nepotism also strongly indicates
that that prohibition was intended to be a comprehensive one. Section 1, Book V, E.O. No. 292 sets out
the basic policy which pervades all the provisions of our Civil Service law, including Section 59 thereof:

Sec. 1. Declaration of Policy. — The State shall insure and promote the Constitutional mandate that
appointments in the Civil Service shall be made only according to merit and fitness; . . . (Emphasis
supplied)

Put succinctly, that purpose is to ensure that all appointments and other personnel actions in the civil
service should be based on merit and fitness and should never depend on how close or intimate an
appointee is to the appointing power. 12

Laurel V, etc. v. Civil Service Commission supra, is instructive in this connection. In that case, petitioner
Governor of Batangas Province appointed or designated his brother, Benjamin Laurel, who had been
holding a promotional appointment as Civil Security Officer, a position classified as "primarily
confidential" by the Civil Service, to the position of Provincial Administrator, a position in the Career Civil
Service. This Court held that the appointment or designation as Acting Provincial Administrator was
violative of the prohibition against nepotism, then embodied in Section 49, P.D. No. 807. Moreover, the
Court emphatically agreed with the Civil Service Commission that "although what was extended to
Benjamin was merely a designation and not an appointment, . . . the prohibitive mantle on nepotism
would include designation, because what cannot be done directly, cannot be done indirectly:"

We cannot accept petitioner's view. His specious and tenuous distinction between appointment and
designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on
nepotism or a last-ditch maneuver to cushion the impact of its violation. The rule admits of no
distinction between appointment and designation. Designation is also defined as "an appointment or
assignment to a particular office"; and "to designate" means "to indicate, select, appoint or set apart for
a purpose of duty." (Black's Law Dictionary, Fifth ed., 402)

xxx xxx xxx

It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be
differentiated from appointment. Reading this section with Section 25 of said decree, career service
positions may be filled up only by appointment, either permanent or temporary; hence a designation of
a person to fill it up because it is vacant, is necessarily included in the term appointment, for it precisely
accomplishes the same purpose. Moreover, if a designation is not to be deemed included in the term
appointment under Section 49 of P.D. No. 807, then the prohibition on nepotism would be meaningless
and toothless. Any appointing authority may circumvent it by merely designating, and not appointing, a
relative within the prohibited degree to a vacant position in the career service. Indeed, as correctly
stated by public respondent, "what cannot be done directly cannot be done indirectly." 13 (Emphasis
partly in the original and partly supplied; citation omitted)

Thus, the Court was unwilling to restrict and limit the scope of the prohibition which is textually very
broad and comprehensive.

One of the contentions of petitioner in the case at bar is that the ratio of the prohibition against
nepotism is not applicable here because petitioner Victoria was already in the government service at the
time petitioners were married in 1964. It is not disputed that the original 1961 appointment of petitioner
Victoria as an Assistant License Clerk was not a nepotic appointment. Indeed, Section 59 itself states, in
the 4th paragraph thereof, that the prohibition against nepotism is not

applicable to the case of a member of any family who, after his or her appointment to any position in any
office or bureau, contracts marriage with someone in the same office or bureau, in which event the
employment or retention therein of both husband and wife may be allowed. (Emphasis supplied)

The subsequent marriage of one to the other of petitioners did not retroactively convert the original
appointment of petitioner Victoria into a prohibited nepotic one. It is the promotional appointment
issued by petitioner Mayor to petitioner Victoria in 1 October 1982 that is at stake.

Here, the basic argument of petitioners is that to read the prohibition in Section 59, Book V of E.O. No.
292 as applicable both to original and promotional or subsequent appointments, would be to deprive
the government of the services of loyal and faithful employees who would thereby be penalized simply
because the appointing or recommending official happens to be related to the employees within the
third degree of consanguinity or affinity.

A major difficulty with the petitioners' argument is that it tends to prove too much. For the appointee,
whether in an original or a promotion appointment, may in fact be quite loyal and efficient and hard-
working; yet that circumstance will not prevent the application of the prohibition certainly in respect of
the original appointment. The Court is not unaware of the difficulties that the comprehensive prohibition
against nepotism would impose upon petitioner Victoria and others who maybe in the same position. It
is essential to stress, however, that the prohibition applies quite without regard to the actual merits of
the proposed appointee and to the good intentions of the appointing or recommending authority, and
that the prohibition against nepotism in appointments whether original or promotional, is not intended
by the legislative authority to penalize faithful service.

The purpose of Section 59 which shines through the comprehensive and unqualified language in which it
was cast and has remained for decades, is precisely to take out of the discretion of the appointing and
recommending authority the matter of appointing or recommending for appointment a relative. In other
words, Section 59 insures the objectivity of the appointing or recommending official by preventing that
objectivity from being in fact tested. The importance of this statutory objective is difficult to overstress in
the culture in which we live and work in the Philippines, where family bonds remain, in general,
compelling and cohesive.

The conclusion we reach is that Section 59, Book V, E.O. No. 292 means exactly what it says in plain and
ordinary language: it refers to "all appointments" whether original or promotional in nature. The public
policy embodied in Section 59 is clearly fundamental in importance, and the Court has neither authority
nor inclination to dilute that important public policy by introducing a qualification here or a distinction
there.

It follows that the promotional appointment of petitioner Victoria by her husband, petitioner Mayor, falls
within the prohibited class of appointments: the prohibited relationship between the appointing
authority (petitioner Mayor) and the appointee (wife Victoria) existed at the time the promotional
appointment was issued. It is scarcely necessary to add that the reasons which may have moved
petitioner Mayor to issue the prohibited appointment are, as a matter of law, not relevant in this
connection. 14

II

We turn to the second issue where petitioners contend that when the promotional appointment of
petitioner Victoria was approved by Director Escobia, CSC Field Office, Bacolod City, that appointment
become complete. When petitioner Victoria took her oath of office and commenced the discharge of the
duties of a General Services Officer, she acquired a vested right to that position and cannot, according to
petitioners, be removed from that position without due process of law.

This argument misconceives the nature of the action taken by the respondent Commission. That action
was not the imposition of an administrative disciplinary measure upon petitioner Victoria, nor upon
petitioner Mayor. There were no administrative charges in respect of which petitioner Victoria would
have been entitled to notice and hearing. The Commission, in approving or disapproving an
appointment, only examines the conformity of the appointment with applicable provisions of law and
whether the appointee possesses all the minimum qualifications and none of the disqualifications. At all
events, as the Solicitor General has noted, petitioner Victoria was afforded an opportunity to be heard
when she filed a motion for reconsideration with the Commission and there challenged the disapproval
by the Commission.

The action of the Commission was, in other words, taken in implementation of Section 59, Book V, E.O.
No. 292 and the relevant Implementing Regulations. Because the promotional appointment in favor of
petitioner Victoria was a violation of Section 59, it was null and void as being contra legem. Section 9 of
Rule V of the Omnibus Implementing Regulations sets out the principal legal consequence of an
appointment issued in disregard of the statutory prohibition:

Sec. 9. An appointment accepted by the appointee cannot be withdrawn or revoked by the appointing
authority and shall remain in force and effect until disapproved by the Commission. However, an
appointment may be void from the beginning due to fraud on the part of the appointee or because it
was issued in violation of law. (Emphasis supplied)
A void appointment cannot give rise to security of tenure on the part of the holder of such appointment.

The Commission is empowered to take appropriate action on all appointments and other personnel
actions, e.g., promotions. 15 Such power includes the authority to recall an appointment initially
approved in disregard of applicable provisions of Civil Service law and regulations. Section 20 of Rule VI
of the Omnibus Implementing Rules makes this clear:

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the
following grounds:

(a) Non-compliance with the procedures/criteria provided in the agency's Merit Promotion Plan;

(b) Failure to pass through the agency's Selection/Promotion Board;

(c) Violation of the existing collective agreement between management and employees relative to
promotion; or

(d) Violation of other existing civil service law, rules and regulations. (Emphasis supplied).

The recall or withdrawal by the Commission of the approval which had been issued by one of its Field
Officers, Director Escobia, was accordingly lawful and appropriate, the promotional appointment of
petitioner Victoria being void "from the beginning." The approval issued by Director Escobia did not, as it
could not, cure the intrinsic vice of that appointment.

We conclude, in respect of the second issue, that petitioners have not shown any grave abuse of
discretion, amounting to lack of excess of jurisdiction on the part of respondent Commission.

Petitioners have also complained that the letter of Congressman Carmona which had precipitated action
on the part of respondent Commission, was not a verified letter. They contend that the Commission
could not or should not have acted upon the charges raised in that letter.

We are not aware of any law or regulation requiring the letter written by the Congressman to be
subscribed under oath before the Commission could act thereon. Under its own rules and regulations,
the Commission may review motu proprio personnel actions involving the position of a Division Chief or
above, such as the position of General Services Officer. 16 We hold that the respondent Commission had
authority, indeed the duty, to recall on its own initiative the erroneous initial approval of the
promotional appointment extended to petitioner Victoria, and to review the same de novo.

WHEREFORE, for all the foregoing, the Petition for Certiorari must be DISMISSED for lack of merit. No
pronouncement as to costs.

SO ORDERED.

[G.R. No. 135805. April 29, 1999]

CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O. DACOYCOY, respondent.

DECISION

PARDO, J.:

The case before us is an appeal via certiorari interposed by the Civil Service Commission from a decision
of the Court of Appeals ruling that respondent Pedro O. Dacoycoy was not guilty of nepotism and
declaring null and void the Civil Service Commissions resolution dismissing him from the service as
Vocational School Administrator, Balicuatro College of Arts and Trade, Allen, Northern Samar.

The facts may be succinctly related as follows:

On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-President, Allen Chapter, Northern
Samar, filed with the Civil Service Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for
habitual drunkenness, misconduct and nepotism.[1]

After the fact-finding investigation, the Civil Service Regional Office No. 8, Tacloban City, found a prima
facie case against respondent, and, on March 5, 1996, issued the corresponding formal charge against
him.[2] Accordingly, the Civil Service Commission conducted a formal investigation, and, on January 28,
1997, the Civil Service Commission promulgated its resolution finding no substantial evidence to support
the charge of habitual drunkenness and misconduct. However, the Civil Service Commission found
respondent Pedro O. Dacoycoy guilty of nepotism on two counts as a result of the appointment of his
two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under
his immediate supervision and control as the Vocational School Administrator Balicuatro College of Arts
and Trades, and imposed on him the penalty of dismissal from the service.[3]

On February 25, 1997, respondent Dacoycoy filed a motion for reconsideration;[4] however, on May 20,
1997, the Civil Service Commission denied the motion.[5]
On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a special civil action for certiorari
with preliminary injunction[6] to set aside the Civil Service Commissions resolutions.

On July 29, 1998, the Court of Appeals promulgated its decision reversing and setting aside the decision
of the Civil Service Commission, ruling that respondent did not appoint or recommend his two sons Rito
and Ped, and, hence, was not guilty of nepotism. The Court further held that it is the person who
recommends or appoints who should be sanctioned, as it is he who performs the prohibited act.[7]

Hence, this appeal.

On November 17, 1998, we required respondent to comment on the petition within ten (10) days from
notice.[8] On December 11, 1998, respondent filed his comment

We give due course to the petition.

The basic issue raised is the scope of the ban on nepotism.

We agree with the Civil Service Commission that respondent Pedro O. Dacoycoy was guilty of nepotism
and correctly meted out the penalty of dismissal from the service.

The law defines nepotism[9] as follows:

Sec. 59. Nepotism. (1) All appointments to the national, provincial, city and municipal governments or in
any branch or instrumentality thereof, including government owned or controlled corporations, made in
favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office,
or of the persons exercising immediate supervision over him, are hereby prohibited.

As used in this Section, the word relative and members of the family referred to are those related within
the third degree either of consanguinity or of affinity.
(2) The following are exempted from the operations of the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the
Philippines: Provided, however, That in each particular instance full report of such appointment shall be
made to the Commission.

Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a
relative within the third civil degree of consanguinity or affinity of any of the following:

a) appointing authority;

b) recommending authority;

c) chief of the bureau or office, and

d) person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the
appointing or recommending authority is. To constitute a violation of the law, it suffices that an
appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or
affinity of the chief of the bureau or office, or the person exercising immediate supervision over the
appointee.

Respondent Dacoycoy is the Vocational School Administrator, Balicuatro College of Arts and Trades,
Allen, Northern Samar. It is true that he did not appoint or recommend his two sons to the positions of
driver and utility worker in the Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag,
Head of the Vocational Department of the BCAT, who recommended the appointment of Rito. Mr.
Daclag's authority to recommend the appointment of first level positions such as watchmen, security
guards, drivers, utility workers, and casuals and emergency laborers for short durations of three to six
months was recommended by respondent Dacoycoy and approved by DECS Regional Director Eladio C.
Dioko, with the provision that such positions shall be under Mr. Daclags immediate supervision. On July
1, 1992, Atty. Victorino B. Tirol II, Director III, DECS Regional Office VIII, Palo, Leyte, appointed Rito
Dacoycoy driver of the school. On January 3, 1993, Mr. Daclag also appointed Ped Dacoycoy casual utility
worker. However, it was respondent Dacoycoy who certified that funds are available for the proposed
appointment of Rito Dacoycoy and even rated his performance as very satisfactory. On the other hand,
his son Ped stated in his position description form that his father was his next higher supervisor. The
circumvention of the ban on nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of
respondent Pedro O. Dacoycoy, who was the school administrator. He authorized Mr. Daclag to
recommend the appointment of first level employees under his immediate supervision. Then Mr. Daclag
recommended the appointment of respondents two sons and placed them under respondents
immediate supervision serving as driver and utility worker of the school. Both positions are career
positions.

To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the appointing or
recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism.

At this point, we have necessarily to resolve the question of the party adversely affected who may take
an appeal from an adverse decision of the appellate court in an administrative civil service disciplinary
case. There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the
decision of the Civil Service Commission adverse to him.[10] He was the respondent official meted out
the penalty of dismissal from the service. On appeal to the Court of Appeals, the court required the
petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public
respondent[11] as the government agency tasked with the duty to enforce the constitutional and
statutory provisions on the civil service.[12]

Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held
respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the
Supreme Court? Certainly not the respondent, who was declared not guilty of the charge. Nor the
complainant George P. Suan, who was merely a witness for the government.[13] Consequently, the Civil
Service Commission has become the party adversely affected by such ruling, which seriously prejudices
the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals
to the Supreme Court.[14] By this ruling, we now expressly abandon and overrule extant jurisprudence
that the phrase party adversely affected by the decision refers to the government employee against
whom the administrative case is filed for the purpose of disciplinary action which may take the form of
suspension, demotion in rank or salary, transfer, removal or dismissal from office[15] and not included
are cases where the penalty imposed is suspension for not more then thirty (30) days or fine in an
amount not exceeding thirty days salary[16] or when the respondent is exonerated of the charges, there
is no occasion for appeal.[17] In other words, we overrule prior decisions holding that the Civil Service
Law does not contemplate a review of decisions exonerating officers or employees from administrative
charges enunciated in Paredes v. Civil Service Commission;[18] Mendez v. Civil Service Commission;[19]
Magpale v. Civil Service Commission;[20] Navarro v. Civil Service Commission and Export Processing Zone
Authority[21] and more recently Del Castillo v. Civil Service Commission[22]

The Court of Appeals reliance on Debulgado vs. Civil Service Commission,[23] to support its ruling is
misplaced. The issues in Debulgado are whether a promotional appointment is covered by the
prohibition against nepotism or the prohibition applies only to original appointments to the civil service,
and whether the Commission had gravely abused its discretion in recalling and disapproving the
promotional appointment given to petitioner after the Commission had earlier approved that
appointment. Debulgado never even impliedly limited the coverage of the ban on nepotism to only the
appointing or recommending authority for appointing a relative. Precisely, in Debulgado, the Court
emphasized that Section 59 means exactly what it says in plain and ordinary language: x x x The public
policy embodied in Section 59 is clearly fundamental in importance, and the Court had neither authority
nor inclination to dilute that important public policy by introducing a qualification here or a distinction
there.[24]

Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. In
Debulgado, we stressed that [T]the basic purpose or objective of the prohibition against nepotism also
strongly indicates that the prohibition was intended to be a comprehensive one.[25] The Court was
unwilling to restrict and limit the scope of the prohibition which is textually very broad and
comprehensive.[26] If not within the exceptions, it is a form of corruption that must be nipped in the
bud or bated whenever or wherever it raises its ugly head. As we said in an earlier case what we need
now is not only to punish the wrongdoers or reward the outstanding civil servants, but also to plug the
hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal
procedures in order to abate any occasion for graft or circumvention of the law.[27]

WHEREFORE, the Court hereby GRANTS the petition and REVERSES the decision of the Court of Appeals
in CA-G.R. SP No. 44711.

ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the Civil Service Commission dated
January 28, 1998 and September 30, 1998, dismissing respondent Pedro O. Dacoycoy from the service.

No costs.

SO ORDERED.

DANTE V. LIBAN,

REYNALDO M. BERNARDO,
and SALVADOR M. VIARI,

Petitioners,

- versus -

RICHARD J. GORDON,

Respondent.

G.R. No. 175352

Present:

PUNO, C.J.,
QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

CORONA,

CARPIO MORALES,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA, and

BERSAMIN, JJ.

Promulgated:

July 15, 2009

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

DECISION

CARPIO, J.:

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

The Facts

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

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

SEC. 13. No Senator or Member of the House of Representatives may hold any other office or
employment in the Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his
seat. Neither shall he be appointed to any office which may have been created or the emoluments
thereof increased during the term for which he was elected.

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

In his Comment, respondent asserts that petitioners have no standing to file this petition which appears
to be an action for quo warranto, since the petition alleges that respondent committed an act which, by
provision of law, constitutes a ground for forfeiture of his public office. Petitioners do not claim to be
entitled to the Senate office of respondent. Under Section 5, Rule 66 of the Rules of Civil Procedure, only
a person claiming to be entitled to a public office usurped or unlawfully held by another may bring an
action for quo warranto in his own name. If the petition is one for quo warranto, it is already barred by
prescription since under Section 11, Rule 66 of the Rules of Civil Procedure, the action should be
commenced within one year after the cause of the public officers forfeiture of office. In this case,
respondent has been working as a Red Cross volunteer for the past 40 years. Respondent was already
Chairman of the PNRC Board of Governors when he was elected Senator in May 2004, having been
elected Chairman in 2003 and re-elected in 2005.

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

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

Respondent further insists that the PNRC is not a government-owned or controlled corporation and that
the prohibition under Section 13, Article VI of the Constitution does not apply in the present case since
volunteer service to the PNRC is neither an office nor an employment.
In their Reply, petitioners claim that their petition is neither an action for quo warranto nor an action for
declaratory relief. Petitioners maintain that the present petition is a taxpayers suit questioning the
unlawful disbursement of funds, considering that respondent has been drawing his salaries and other
compensation as a Senator even if he is no longer entitled to his office. Petitioners point out that this
Court has jurisdiction over this petition since it involves a legal or constitutional issue which is of
transcendental importance.

The Issues

Petitioners raise the following issues:

1. Whether the Philippine National Red Cross (PNRC) is a government- owned or controlled corporation;

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

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

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

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

We find the petition without merit.

Petitioners Have No Standing to File this Petition

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

Section 1. Action by Government against individuals. An action for the usurpation of a public office,
position or franchise may be commenced by a verified petition brought in the name of the Republic of
the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or
franchise;

(b) A public officer who does or suffers an act which by provision of law, constitutes a ground for the
forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without being legally incorporated
or without lawful authority so to act. (Emphasis supplied)

Petitioners allege in their petition that:

4. Respondent became the Chairman of the PNRC when he was elected as such during the First Regular
Luncheon-Meeting of the Board of Governors of the PNRC held on February 23, 2006, the minutes of
which is hereto attached and made integral part hereof as Annex A.

5. Respondent was elected as Chairman of the PNRC Board of Governors, during his incumbency as a
Member of the House of Senate of the Congress of the Philippines, having been elected as such during
the national elections last May 2004.

6. Since his election as Chairman of the PNRC Board of Governors, which position he duly accepted,
respondent has been exercising the powers and discharging the functions and duties of said office,
despite the fact that he is still a senator.
7. It is the respectful submission of the petitioner[s] that by accepting the chairmanship of the Board of
Governors of the PNRC, respondent has ceased to be a Member of the House of Senate as provided in
Section 13, Article VI of the Philippine Constitution, x x x

xxxx

10. It is respectfully submitted that in accepting the position of Chairman of the Board of Governors of
the PNRC on February 23, 2006, respondent has automatically forfeited his seat in the House of Senate
and, therefore, has long ceased to be a Senator, pursuant to the ruling of this Honorable Court in the
case of FLORES, ET AL. VS. DRILON AND GORDON, G.R. No. 104732, x x x

11. Despite the fact that he is no longer a senator, respondent continues to act as such and still performs
the powers, functions and duties of a senator, contrary to the constitution, law and jurisprudence.

12. Unless restrained, therefore, respondent will continue to falsely act and represent himself as a
senator or member of the House of Senate, collecting the salaries, emoluments and other
compensations, benefits and privileges appertaining and due only to the legitimate senators, to the
damage, great and irreparable injury of the Government and the Filipino people.[5] (Emphasis supplied)

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

Quo warranto is generally commenced by the Government as the proper party plaintiff. However, under
Section 5, Rule 66 of the Rules of Court, an individual may commence such an action if he claims to be
entitled to the public office allegedly usurped by another, in which case he can bring the action in his
own name. The person instituting quo warranto proceedings in his own behalf must claim and be able to
show that he is entitled to the office in dispute, otherwise the action may be dismissed at any stage.[6]
In the present case, petitioners do not claim to be entitled to the Senate office of respondent. Clearly,
petitioners have no standing to file the present petition.

Even if the Court disregards the infirmities of the petition and treats it as a taxpayers suit, the petition
would still fail on the merits.
PNRC is a Private Organization Performing Public Functions

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

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

WHEREAS, there was developed at Geneva, Switzerland, on August 22, 1864, a convention by which the
nations of the world were invited to join together in diminishing, so far lies within their power, the evils
inherent in war;

WHEREAS, more than sixty nations of the world have ratified or adhered to the subsequent revision of
said convention, namely the Convention of Geneva of July 29 [sic], 1929 for the Amelioration of the
Condition of the Wounded and Sick of Armies in the Field (referred to in this Charter as the Geneva Red
Cross Convention);

WHEREAS, the Geneva Red Cross Convention envisages the establishment in each country of a voluntary
organization to assist in caring for the wounded and sick of the armed forces and to furnish supplies for
that purpose;

WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946 and
proclaimed its adherence to the Geneva Red Cross Convention on February 14, 1947, and by that action
indicated its desire to participate with the nations of the world in mitigating the suffering caused by war
and to establish in the Philippines a voluntary organization for that purpose as contemplated by the
Geneva Red Cross Convention;

WHEREAS, there existed in the Philippines since 1917 a Charter of the American National Red Cross
which must be terminated in view of the independence of the Philippines; and

WHEREAS, the volunteer organizations established in the other countries which have ratified or adhered
to the Geneva Red Cross Convention assist in promoting the health and welfare of their people in peace
and in war, and through their mutual assistance and cooperation directly and through their international
organizations promote better understanding and sympathy among the peoples of the world. (Emphasis
supplied)

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

1. HUMANITY The International Red Cross and Red Crescent Movement, born of a desire to bring
assistance without discrimination to the wounded on the battlefield, endeavors, in its international and
national capacity, to prevent and alleviate human suffering wherever it may be found. Its purpose is to
protect life and health and to ensure respect for the human being. It promotes mutual understanding,
friendship, cooperation and lasting peace amongst all peoples.

2. IMPARTIALITY It makes no discrimination as to nationality, race, religious beliefs, class or political

opinions. It endeavors to relieve the suffering of individuals, being guided solely by their needs, and to
give priority to the most urgent cases of distress.

3. NEUTRALITY In order to continue to enjoy the confidence of all, the Movement may not take sides in
hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.

4. INDEPENDENCE The Movement is independent. The National Societies, while auxiliaries in the
humanitarian services of their governments and subject to the laws of their respective countries, must
always maintain their autonomy so that they may be able at all times to act in accordance with the
principles of the Movement.

5. VOLUNTARY SERVICE It is a voluntary relief movement not prompted in any manner by desire for gain.

6. UNITY There can be only one Red Cross or one Red Crescent Society in any one country. It must be
open to all. It must carry on its humanitarian work throughout its territory.

7. UNIVERSALITY The International Red Cross and Red Crescent Movement, in which all Societies have
equal status and share equal responsibilities and duties in helping each other, is worldwide. (Emphasis
supplied)

The Fundamental Principles provide a universal standard of reference for all members of the Movement.
The PNRC, as a member National Society of the Movement, has the duty to uphold the Fundamental
Principles and ideals of the Movement. In order to be recognized as a National Society, the PNRC has to
be autonomous and must operate in conformity with the Fundamental Principles of the Movement.[11]
The reason for this autonomy is fundamental. To be accepted by warring belligerents as neutral workers
during international or internal armed conflicts, the PNRC volunteers must not be seen as belonging to
any side of the armed conflict. In the Philippines where there is a communist insurgency and a Muslim
separatist rebellion, the PNRC cannot be seen as government-owned or controlled, and neither can the
PNRC volunteers be identified as government personnel or as instruments of government policy.
Otherwise, the insurgents or separatists will treat PNRC volunteers as enemies when the volunteers tend
to the wounded in the battlefield or the displaced civilians in conflict areas.

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

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

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

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

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

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

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

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

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

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

xxx

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

xxx

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

The President does not appoint the Chairman of the PNRC. Neither does the head of any department,
agency, commission or board appoint the PNRC Chairman. Thus, the PNRC Chairman is not an official or
employee of the Executive branch since his appointment does not fall under Section 16, Article VII of the
Constitution. Certainly, the PNRC Chairman is not an official or employee of the Judiciary or Legislature.
This leads us to the obvious conclusion that the PNRC Chairman is not an official or employee of the
Philippine Government. Not being a government official or employee, the PNRC Chairman, as such, does
not hold a government office or employment.
Under Section 17, Article VII of the Constitution,[17] the President exercises control over all government
offices in the Executive branch. If an office is legally not under the control of the President, then such
office is not part of the Executive branch. In Rufino v. Endriga,[18] the Court explained the Presidents
power of control over all government offices as follows:

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

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

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

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

In short, the President sits at the apex of the Executive branch, and exercises control of all the executive
departments, bureaus, and offices. There can be no instance under the Constitution where an officer of
the Executive branch is outside the control of the President. The Executive branch is unitary since there
is only one President vested with executive power exercising control over the entire Executive branch.
Any office in the Executive branch that is not under the control of the President is a lost command whose
existence is without any legal or constitutional basis. (Emphasis supplied)

An overwhelming four-fifths majority of the PNRC Board are private sector individuals elected to the
PNRC Board by the private sector members of the PNRC. The PNRC Board exercises all corporate powers
of the PNRC. The PNRC is controlled by private sector individuals. Decisions or actions of the PNRC Board
are not reviewable by the President. The President cannot reverse or modify the decisions or actions of
the PNRC Board. Neither can the President reverse or modify the decisions or actions of the PNRC
Chairman. It is the PNRC Board that can review, reverse or modify the decisions or actions of the PNRC
Chairman. This proves again that the office of the PNRC Chairman is a private office, not a government
office.
Although the State is often represented in the governing bodies of a National Society, this can be
justified by the need for proper coordination with the public authorities, and the government
representatives may take part in decision-making within a National Society. However, the freely-elected
representatives of a National Societys active members must remain in a large majority in a National
Societys governing bodies.[19]

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

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

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

Petitioners anchor their petition on the 1999 case of Camporedondo v. NLRC,[22] which ruled that the
PNRC is a government-owned or controlled corporation. In ruling that the PNRC is a government-owned
or controlled corporation, the simple test used was whether the corporation was created by its own
special charter for the exercise of a public function or by incorporation under the general corporation
law. Since the PNRC was created under a special charter, the Court then ruled that it is a government
corporation. However, the Camporedondo ruling failed to consider the definition of a government-
owned or controlled corporation as provided under Section 2(13) of the Introductory Provisions of the
Administrative Code of 1987:

SEC. 2. General Terms Defined. x x x

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

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

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

The 1935 Constitution, as amended, was in force when the PNRC was created by special charter on 22
March 1947. Section 7, Article XIV of the 1935 Constitution, as amended, reads:

SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or
regulation of private corporations, unless such corporations are owned or controlled by the Government
or any subdivision or instrumentality thereof.

The subsequent 1973 and 1987 Constitutions contain similar provisions prohibiting Congress from
creating private corporations except by general law. Section 1 of the PNRC Charter, as amended, creates
the PNRC as a body corporate and politic, thus:

SECTION 1. There is hereby created in the Republic of the Philippines a body corporate and politic to be
the voluntary organization officially designated to assist the Republic of the Philippines in discharging the
obligations set forth in the Geneva Conventions and to perform such other duties as are inherent upon a
National Red Cross Society. The national headquarters of this Corporation shall be located in
Metropolitan Manila. (Emphasis supplied)

In Feliciano v. Commission on Audit,[23] the Court explained the constitutional provision prohibiting
Congress from creating private corporations in this wise:

We begin by explaining the general framework under the fundamental law. The Constitution recognizes
two classes of corporations. The first refers to private corporations created under a general law. The
second refers to government-owned or controlled corporations created by special charters. Section 16,
Article XII of the Constitution provides:

Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or
regulation of private corporations. Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good and subject to the test of economic
viability.

The Constitution emphatically prohibits the creation of private corporations except by general law
applicable to all citizens. The purpose of this constitutional provision is to ban private corporations
created by special charters, which historically gave certain individuals, families or groups special
privileges denied to other citizens.
In short, Congress cannot enact a law creating a private corporation with a special charter. Such
legislation would be unconstitutional. Private corporations may exist only under a general law. If the
corporation is private, it must necessarily exist under a general law. Stated differently, only corporations
created under a general law can qualify as private corporations. Under existing laws, the general law is
the Corporation Code, except that the Cooperative Code governs the incorporation of cooperatives.

The Constitution authorizes Congress to create government-owned or controlled corporations through

special charters. Since private corporations cannot have special charters, it follows that Congress can
create corporations with special charters only if such corporations are government-owned or controlled.
[24] (Emphasis supplied)

In Feliciano, the Court held that the Local Water Districts are government-owned or controlled
corporations since they exist by virtue of Presidential Decree No. 198, which constitutes their special
charter. The seed capital assets of the Local Water Districts, such as waterworks and sewerage facilities,
were public property which were managed, operated by or under the control of the city, municipality or
province before the assets were transferred to the Local Water Districts. The Local Water Districts also
receive subsidies and loans from the Local Water Utilities Administration (LWUA). In fact, under the 2009
General Appropriations Act,[25] the LWUA has a budget amounting to P400,000,000 for its subsidy
requirements.[26] There is no private capital invested in the Local Water Districts. The capital assets and
operating funds of the Local Water Districts all come from the government, either through transfer of
assets, loans, subsidies or the income from such assets or funds.

The government also controls the Local Water Districts because the municipal or city mayor, or the
provincial governor, appoints all the board directors of the Local Water Districts. Furthermore, the board
directors and other personnel of the Local Water Districts are government employees subject to civil
service laws and anti-graft laws. Clearly, the Local Water Districts are considered government-owned or
controlled corporations not only because of their creation by special charter but also because the
government in fact owns and controls the Local Water Districts.

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

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

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

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a
government office or an office in a government-owned or controlled corporation for purposes of the
prohibition in Section 13, Article VI of the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a),
5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red Cross, or Republic Act No.
95, as amended by Presidential Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a
private corporation or grant it corporate powers.

SO ORDERED.