G.R. No.
90799 October 18, 1990
AUGUSTO L. GASPAR, petitioner,
vs.
COURT OF APPEALS, CIVIL SERVICE COMMISSION, and ZENAIDA F. LANTING, respondents.
The City Legal Officer for petitioner.
Thelma Panganiban-Gaminde, Rogelio C. Limare and Dante G. Huerta for Civil Service Commission.
RESOLUTION
NARVASA, J.:
Augusto L. Gaspar seeks the setting aside of the Decision of the Civil Service Commission dated July 19,
1985 (affirmed by the Court of Appeals), which revoked his appointment as Administrative Officer II of
the Parks Development Office, Manila, and directed the appointment of Zenaida F. Lanting as such, in
his stead.
Gaspar was the Chief of the Security Section of the Parks Development Office of the City of Manila when
Executive Order No. 81-01 was issued by the Governor of the Metro Manila Commission on May 24,
1981. The Executive Order established a comprehensive position classification and pay plan for MMC
officers and employees, and contained a provision reclassifying Gaspar's position of Chief, Security
Section, to Administrative Officer II. On April 25, 1983, Gaspar was appointed to that position of
Administrative Officer II, effective on October 1, 1982.
Zenaida F. Lanting, then Senior Accounting Clerk in the same Parks Development Office, filed with the
Merit Systems Board a protest against Gaspar's appointment as Administrative Officer II, contending
that she was better qualified for, and should have been named to, the office.
After due proceedings, the Merit Systems Board (MSB) revoked Gaspar's appointment and directed
Lanting's appointment to the office of Administrative Officer II, in a decision rendered on November 28,
1984. Gaspar appealed to the Civil Service Commission (CSC) .
After initially sustaining Gaspar (in Resolution No. 85-177, May 21, 1985), the CSC ultimately affirmed
the judgment of the MSB by Resolution numbered 85-291 promulgated on July 19, 1985 and, as the
MSB had done, directed "the appointment of ... Lanting to the position of Administrative Officer II in
the Parks Development Office ..." The CSC said:
A comprehensive evaluation of the qualifications of the parties would show that
while both are at par in experience and training, Lanting has an edge over Gaspar
in education. Her masteral degree in Public Administration as compared to 36
academic units in Business Administration course earned by Gaspar provide her
with the required knowledge in management principles and techniques as well as
substantial preparation to assume higher duties and responsibilities taking into
account the supervisory nature of the position. It can therefore be concluded that
Lanting is better qualified and more competent for appointment as Administrative
Officer II. Such being the case, Lanting has better potentials to assume the duties
and responsibilities of this contested position.
There is no intimation whatever that Gaspar is not qualified for the position of Administrative Officer
II. On the contrary, it seems quite evident that the Civil Service Commission considers both him and
Lanting to possess the minimum qualifications for the office, but that, in the Commission's view,
"Lanting has an edge over Gaspar in education" and "has better potentials to assume the duties and
responsibilities of .. (the) contested position."
The same situation was presented to this Court in a case decided on August 5, 1986, Luego v. Civil
Service Commission, and Felicula Tuozo.1 It will therefore be in accordance with the doctrine therein
that the appellate proceeding at bar will be resolved.
In Luego, the appointment by the City Mayor of Cebu of Felimon Luego as Administrative Officer II,
Administrative Division, Cebu City, was protested by Felicula Tuozo and another employee. The issue
presented was Identical to that posed in the case at bar. It was, according to the Court, "starkly simple:
Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that
another person is better qualified than the appointee and, on the basis of this finding, order his
replacement by the latter?"
The Court ruled that under the circumstances, and in light of the relevant legal provisions, "all the
Commission is actually allowed to do is check whether or not the appointee possesses the appropriate
civil service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is
disapproved. No other criterion is permitted by law to be employed by the Commission when it acts
on-or as the (Civil Service Decree says, 'approves' or 'disapproves' — an appointment made by the
proper authorities."
The only function of the Civil Service Commission in cases of this nature, according to Luego, is to review
the appointment in the light of the requirements of the Civil Service Law, and when it finds the
appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no
choice but to attest to the appointment. Luego finally points out that the recognition by the
Commission that both the appointee and the protestant are qualified for the position in controversy
renders it functus officio in the case and prevents it from acting further thereon except to affirm the
validity of the former's appointment; it has no authority to revoke the appointment simply because it
considers another employee to be better qualified for that would constitute an encroachment on the
discretion vested in the appointing authority.
The doctrine has since been subsequently applied, in Central Bank of the Philippines, et al. v. Civil Service
Commission, et al., G.R. Nos. 80455-56, April 10, 1989, and Maximo Gabriel v. Hon. Eufemio Domingo,
et al., etc., G.R. No. 87420, September 17, 1990. 2
The determination of who among several candidates for a vacant position has the best qualifications is
vested in the sound discretion of the Department Head or appointing authority and not in the Civil
Service Commission. Every particular job in an office calls for both formal and informal qualifications.
Formal qualifications such as age, number of academic units in a certain course, seminars attended,
etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative,
loyalty, ambition, prospects for the future, and best interests of the service. Given the demands of a
certain job, who can do it best should be left to the Head of the office concerned provided the legal
requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment
for that of the Head of Office in this regard.

In the case at bar, therefore, the respondent Commission acted beyond the scope of its authority and
with grave abuse of discretion in revoking the petitioner's appointment and directing the appointment
in his stead of the private respondent.

WHEREFORE, Resolution No. 85-291 of the respondent Civil Service Commission, dated July 19, 1985,
is SET ASIDE and the petitioner, Augusto L. Gaspar, is hereby declared to be entitled to the office of
Administrative Officer II of the Parks Development Office of the City of Manila by virtue of the
appointment extended to him on April 25, 1983, effective on October 1, 1982.

Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-
Aquino, Medialdea and Regalado, JJ., concur.

Paras and Feliciano, JJ., is on leave.

G.R. No. L-24761 September 7, 1965
LEON G. MAQUERA, petitioner,
vs.
JUAN BORRA, CESAR MIRAFLOR, and GREGORIO SANTAYANA, in their respective capacities as
Chairman and Members of the Commission on Elections, and the COMMISSION ON
ELECTIONS, respondents.
---------------------------
G.R. No. L-24828 September 7, 1965
FELIPE N. AUREA and MELECIO MALABANAN, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Leon G. Maquera in his own behalf as petitioner.
Ramon Barrios for respondents.
RESOLUTION
PER CURIAM:
Upon consideration of case G.R. No. L-24761, "Leon G. Maquera vs. Juan Borra, et al.," and case G.R.
No. L-24828, "Felipe N. Aurea and Melecio Malabanan vs. Commission on Elections," and it appearing:
1. That Republic Act No. 4421 requires "all candidates for national, provincial, city and municipal offices"
to post a surety bond equivalent to the one-year salary or emoluments of the position to which he is a
candidate, which bond shall be forfeited in favor of the national, provincial, city or municipal
government concerned if the candidate, except when declared winner, fails to obtain at least 10% of
the votes cast for the office to which he has filed his certificate of candidacy, there being not more than
four (4) candidates for the same office;"
2. That, in compliance with said Republic Act No. 4421, the Commission on Elections had, on July 20,
1965, decided to require all candidates for President, Vice-President, Senator and Member of the House
of Representatives to file a surety bond, by a bonding company of good reputation, acceptable to the
Commission, in the sums of P60,000.00 and P40,000.00, for President and Vice-President, respectively,
and P32,000.00 for Senator and Member of the House of Representatives;
3. That, in consequence of said Republic Act No. 4421 and the aforementioned action of the
Commission on Elections, every candidate has to pay the premium charged by bonding companies, and,
to offer thereto, either his own properties, worth, at least, the amount of the surety bond, or properties
of the same worth, belonging to other persons willing to accommodate him, by way of counter-bond in
favor of said bonding companies;
4. That the effect of said Republic Act No. 4421 is, therefore, to prevent or disqualify from running for
President, Vice-President, Senator or Member of the House of Representatives those persons who,
although having the qualifications prescribed by the Constitution therefore, cannot file the surety bond
aforementioned, owing to failure to pay the premium charged by the bonding company and/or lack of
the property necessary for said counter-bond;
5. That said Republic Act No. 4421 has, likewise, the effect of disqualifying for provincial, city or
municipal elective offices, persons who, although possessing the qualifications prescribed by law
therefor, cannot pay said premium and/or do not have the property essential for the aforementioned
counter-bond;
6. That said Republic Act No. 4421 has, accordingly, the effect of imposing property qualifications in
order that a person could run for a public office and that the people could validly vote for him;
7. That said property qualifications are inconsistent with the nature and essence of the Republican
system ordained in our Constitution and the principle of social justice underlying the same, for said
political system is premised upon the tenet that sovereignty resides in the people and all government
authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be
voted for shall not be dependent upon the wealth of the individual concerned, whereas social justice
presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no person shall, by
reason of poverty, be denied the chance to be elected to public office; and
8. That the bond required in Republic Act No. 4421 and the confiscation of said bond are not predicated
upon the necessity of defraying certain expenses or of compensating services given in connection with
elections, and is, therefore, arbitrary and oppressive.
The Court RESOLVED, without prejudice to rendering an extended decision, to declare that said
Republic Act No. 4421 is unconstitutional and hence null and void, and, hence, to enjoin respondents
herein, as well as their representatives and agents, from enforcing and/or implementing said
constitutional enactment.
Bautista Angelo, Concepcion, Reyes, J.B.L., Dizon., Makalintal and Zaldivar, JJ., concur.
Bengzon, C.J., took no part.
Barrera, J., is on leave.
G.R. No. L-55151 March 17, 1981
DAVID AGUILA, EDITA BUENO, EVELITO ELENTO, RESURRECTION INTING, ANTONIO LIM and
WILFREDO CABARDO, petitioners,
vs.
HON. MELECIO A. GENATO and DOMINADOR B. BORJE, respondents.
MELENCIO-HERRERA, J.:
The principal issue raised in this certiorari petition with a prayer for a Writ of Preliminary Injunction is
whether or not respondent Judge committed grave abuse of discretion in issuing a Restraining Order,
which had the effect of allowing private respondent, Dominador B. Borje, to retain his position as
member of the Board of Directors of the Misamis Occidental Electric Cooperative, Inc ., (MOELCI II)
Succintly stated, the pertinent facts follow:
Petitioners David Aguila and Edita Bueno are the Deputy Administrator and Director for Cooperative
Development, respectively, of the National Electrification Administration (NEA).
Petitioner Evelito Elento is the Acting General Manager of MOELCI II, while petitioners Ressurrection
Inting, Antonio Lim and Wilfredo Cabardo, are members of its Board of Directors.
Private respondent Dominador B. Borje, representing the North District of Ozamiz City, was elected
Director of MOELCI II, to hold office as such for three years starting March 25, 1979.
Section 21 of Presidential Decree No. 269 (second paragraph) provides:
The provision of any law or regulation to the contrary notwithstanding, an officer or employee of the
government shag be eligible for membership in any cooperative if he meets the qualifications therefor
and he shall not be precluded from being elected to or holding any Position therein, or from receiving
such compensation or fee in relation thereto as may be authorized by the by-laws; Provided That
elective officers of the government, except barrio captains and councilors, shall be ineligible to become
officers and/or directors of any cooperative, ... (emphasis supplied)
Section 3, Article IV of the By-laws of MOELCI II also explicitly states:
Section 3. Qualifications. ... No person shall be eligible to become or to remain a Board member of the
Cooperative who
xxx xxx xxx
(c) holds an elective office in the government above the level of a Barangay Captain
xxx xxx xxx
(emphasis supplied)
On 4 January 1980, private respondent filed his certificate of candidacy for the position of member of
the Sangguniang Panglunsod of Ozamiz City in the 30 January 1980 local elections.
On 7 January 1980, the NEA, through Administrator Pedro G. Dumol, issued Memorandum No. 18 to
the effect that all officials and employees of electric cooperatives who run for public office, win and
assume office, shall be considered The Memorandum was issued pursuant to the authority granted
under PD No. 1645, amending PD No. 269, reading.
10. ... the NEA is empowered to issue orders, rules and regulations ... in the exercise of its power of
supervision and control over electric cooperatives and other borrower, supervised or control entities
(Sec. 5, amending Sec. 10 of P.D. No. 269). 1
On January 1980, the NEA Deputy Administrator sent a telegram to the Acting General Manager of
MOELCI II stating that should private respondent Borje be elected to the Sangguniang Bayan, he shall
be considered resigned from his position as Director for the North District of Ozamiz City, Private
respondent moved reconsideration and requested that he be allowed to serve the unexpired term of
his office in accordance with PD No. 269. Reconsideration was denied by NEA on 7 February 1980.
On 3 March 1980, private respondent filed a Petition for "Prohibition, mandamus & Construction of
Legal Provisions with Preliminary Injunction and Damages" against petitioners before the Court of First
Instance of Misamis Occidental, Branch II (Spec. Case No. 0511), seeking a declaration of entitlement
to remain and to serve his unexpired term as Director of MOELCI II until March, 1982.
On 3 March 1980, having won the election, private respondent assumed office and began discharging
his functions.
On the same date, 3 March 1980, respondent Judge issued, ex- parte, a temporary restraining Order
commanding petitioners considering private respondent as resigned, and, instead, to snow him to
retain his position as member of the Board of Directors of MOELCI IIpending hearing. 2
Petitioners moved to dismiss and to dissolve the Restraining Order alleging lack of cause of action and
invoking section 21 of PD No. 269 (supra), section 3, Article IV of the by laws OF MOELCI II(supra), as
well as section 24 of PD No. 269 providing that:
... The by-laws shall prescribe the number of directors their qualifications other than those prescribed
in this Decree, the manner of holding meetings of the board and of electing successors to directors who
shall resign, die or otherwise be incapable of acting. The bylaws may also provide for the removal of
directors from office and for the election of their successors ...
On 24 March 1980, respondent Judge lifted and dissolved the Restraining Order, 3 only to restore it the
next day, 25 March 1980. 4
In their Motion seeking reconsideration of the Order of 25 March 1980, petitioners stressed that NEA
possessed the power and authority to promulgate Memorandum No 18, and that, similarly, the Board
of Directors of MOELCI IIhad the power to implement the same under PD No. 269, as amended by PD
1645.
Petitioners filed their Answer on 6 April 1980 reiterating the grounds in their Motion to Dismiss.
On 8 May 1980, vacation Judge Celso Largo reconsidered the Order of respondent Judge, dated 25
March 1980, and dissolved the Restraining Order. 5
On 10 May 1980, the Board of Directors of MOELCI II held a special meeting and passed Resolution No.
121, S-80, implementing NEA Circular No. 18 and declaring private respondent's position as member of
the Board of Directors of MOELCI II vacant.
On 6 June 1980, upon a Motion for Reconsideration, respondent Judge set aside the Order of the
vacation Judge, dated 8 May 1980, in effect reviving the Restraining Order, on the ground that, as
"councilor" of Ozamiz City, section 21 of PD No. 269 itself exempts private respondent from the
prohibition imposed on elective officials to become Directors of electric cooperatives. 6
Hence, this Petition filed on 29 September 1980 by petitioners, through the Solicitor General, advancing
the view that Courts of First Instance have no jurisdiction to issue a Restraining Order and that
respondent Judge had committed grave abuse of discretion in issuing the same.
The fact that private respondent may have been qualified at the time he assumed the Directorship is
not sufficient to entitle him to continue holding office, if during the continuance of his incumbency he
ceases to be qualified. Private respondent was qualified to become a director of MOELCI II at the time
of the commencement of his term, but his election as member of the Sangguniang Panglunsod of
Ozamiz City, and his subsequent assumption of office, disqualified him to continue as such.
Moreover, it should be recalled that when respondent Judge issued the Restraining Order of 6 June
1980. NEA Memorandum Circular No. 18 had already been implemented by the MOELCI Board in the
latter's Resolution No. 121, passed on 10 May 1980, declaring the position of private respondent, as
Director, vacant. Strictly speaking, therefore, there was no longer any position which private
respondent could retain.
WHEREFORE, finding that respondent Judge acted with grave abuse of discretion tantamount to lack of
jurisdiction in issuing the Restraining Order, dated 6 June 1980, the said Order is hereby annulled and
set aside, and the Petition in Special Civil Case No. 05IIof the Court below hereby ordered dismissed.
The temporary Restraining Order heretofore issued by this Court is hereby made permanent. No
pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Fernandez and Guerrero, JJ., concur.

On 10 October 1980 we required respondents to submit an Answer and issued a Restraining Order
enjoining respondents from enforcing the Order of the Court a quo dated 6 June 1980 and from
conducting further proceedings in the case below. Private respondent Borje has filed his Answer,
petitioners have submitted their Reply, and on 2 February 1981, we resolved to give due course to the
Petition and to consider the case submitted for decision.

We find that respondent Judge gravely abused his discretion, amounting to lack of jurisdiction, in issuing
the various Restraining Orders, the last of which was dated 6 June 1980. Private respondent has shown
no clear and explicit right to the position of Director of MOELCI IIand is, therefore, not entitled to a
Restraining Order, which partook of the nature of a mandatory Injunction, commanding as it did that
private respondent be retained in his position as such Director. By having been elected member of the
Sangguniang Panglunsod of Ozamiz City, private respondent rendered himself ineligible to continue
serving as a Director of MOELCI IIby virtue of the clear mandate of PD No. 269 providing that except for
"barrio captains and councilors", elective officials are ineligible to become officers and/or directors of
any cooperative. It is clear to us that the term barrio modifies both captains and councilors. Further,
the MOELCI II, by-laws explicitly state that no person can remain a member of the Board if he "holds an
elective office above the level of barrio captain.

Private respondent's argument that PD 269 (sec. 21) does not prohibit Board members of a
cooperatives from continuing in their position prior to their election, and that pursuant to section 24 of
PD No. 269 he is entitled, as Director, to hold office for the term for which he is erected and until his
successor is elected and qualified," is untenable. Eligibility to an office should be construed as of a
continuing nature and must exist at the commencement of the term and during occupancy of the office.
G.R. No. 120099 July 24, 1996
EDUARDO T. RODRIGUEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.
FRANCISCO, J.:p
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:
. . . , "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 (. . .), 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 emerge 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 retain and enjoin Rodriguez "from exercising the powers, functions and
prerogatives of Governor of Quezon . . . ." 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
. . . 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 in 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:
. . . The main opinion's definition of a "fugitive from justice" "include 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. . . .
Then, citing King v. Noe, the definition continues and conceptualizes a "fugitive from justice" as:
. . . 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 . . . (emphasis 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 hisflight 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:
. . . 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 (emphasis supplied)
Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakeable 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
Decisionand 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":
. . . 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 the 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 Decisiondefinition, 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 ". . .
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 the 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. Not 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. The
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 and
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 a 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 casewhether
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 petition 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. (Emphasis 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 and Canvassers to explain why they should not be
cited in contempt) are SET ASIDE.

SO ORDERED.

Romero, Melo, Puno, Kapunan, Hermosisima, Jr. and Panganiban, JJ., concur.

Bellosillo, J., is on leave.

G.R. No. 130872 March 25, 1999
FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
BELLOSILLO, J.:
FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the Sandiganbayan of
thirteen (13) counts of estafa through falsification of public documents. 1 They now seek a review of
their conviction as they insist on their innocence.
Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son, his
co-petitioner Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay
Bagong Silang, Municipality of Santa Cruz, and concurrently a member of its Sangguniang Bayan (SB)
representing the Federation of Kabataang Barangays.
In the 1985 election for the Kabataang Barangay Jowil Red 2 won as KB Chairman of Barangay Matalaba,
Santa Cruz. Parenthetically, Lenlie Lecaroz, did not run as candidate in this electoral exercise as he was
no longer qualified for the position after having already passed the age limit fixed by law.
Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as member of
the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality. Imee Marcos-Manotoc,
then the National Chairperson of the organization, sent a telegram to Red confirming his appointment
and advising him further that copies of his appointment papers would be sent to him in due time
through the KB Regional Office. 3Red received the telegram on 2 January 1986 and showed it
immediately to Mayor Francisco M. Lecaroz.
On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral
representative of the KBs to the SB, Red attended the meeting of the Sanggunian upon the invitation
of one of its members, Kagawad Rogato Lumawig. In that meeting, Mayor Francisco M. Lecaroz
informed Red that he could not yet sit as member of the municipal council until his appointment had
been cleared by the Governor of Marinduque. Nonetheless, the telegram was included in the agenda
as one of the subjects discussed in the meeting.
Red finally received his appointment papers sometime in January 1986. 4 But it was only on 23 April
1986, when then President Corazon C. Aquino was already in power, 5 that he forwarded these
documents to Mayor Lecaroz. This notwithstanding, Red was still not allowed by the mayor to sit as
sectoral representative in the Sanggunian.
Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie Lecaroz of
twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the period 16 January 1986
to 30 January 1987. Lenlie Lecaroz signed the payroll for 1-15 January 1986 and then authorized
someone else to sign all the other payrolls for the succeeding quincenas and claim the corresponding
salaries in his behalf.
On 25 October 1989, or three (3) years and nine (9) months from the date he received his appointment
papers from President Marcos, Red was finally able to secure from the Aquino Administration a
confirmation of his appointment as KB Sectoral Representative to the Sanggunian Bayan of Santa Cruz.
Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against Mayor
Francisco Lecaroz and Lenlie Lecaroz arising from the refusal of the two officials to let him assume the
position of KB sectoral representative. After preliminary investigation, the Ombudsman filed with the
Sandiganbayan thirteen (13) Informations for estafa through falsification of public documents against
petitioners, and one (1) Information for violation of Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and
Corrupt Practices Act, against Mayor Lecaroz alone.
On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on all
counts of estafa through falsification of public documents and sentenced each of them to —
a) imprisonment for an indeterminate period ranging from a minimum of FIVE (5) YEARS, ELEVEN (11)
MONTHS AND ONE (1) DAY of prision correccional to a maximum of TEN (10) YEARS AND ONE (1) DAY
of prison mayor FOR EACH OF THE ABOVE CASES;
b) a fine in the amount of FIVE THOUSAND PESOS (P5,000) FOR EACH OF THE ABOVE CASES or a total
of SIXTY-FIVE THOUSAND PESOS (P65,000); and
c) perpetual special disqualification from public office in accordance with Art. 214 of the Revised Penal
Code.
. . . (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND SIX HUNDRED SEVENTY-
FIVE PESOS (P23,675), the amount unlawfully obtained, to the Municipality of Sta. Cruz, Marinduque in
restitution.
The Sandiganbayan ruled that since Red was elected president of the KB and took his oath of office
sometime in 1985 before then Assemblywoman Carmencita O. Reyes his assumption of the KB
presidency upon the expiration of the term of accused Lenlie Lecaroz was valid. Conversely, the accused
Lenlie Lecaroz ceased to be a member of the KB on the last Sunday of November 1985 and, as such,
was no longer the legitimate representative of the youth sector in the municipal council of Sta. Cruz,
Marinduque.
In convicting both accused on the falsification charges, the Sandiganbayan elucidated —
. . . . when, therefore, accused MAYOR FRANCISCO LECAROZ entered the name of his son, the accused
LENLIE LECAROZ, in the payroll of the municipality of Sta. Cruz for the payroll period starting January
15, 1986, reinstating accused LENLIE LECAROZ to his position in the Sangguniang Bayan, he was
deliberately stating a falsity when he certified that LENLIE LECAROZ was a member of the Sangguniang
Bayan. The fact is that even accused LENLIE LECAROZ himself no longer attended the sessions of the
Sangguniang Bayan of Sta. Cruz, and starting with the payroll for January 16 to 31, 1986, did not
personally pick up his salaries anymore.
The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code which reads:
Art. 171. Falsification by public officer, employee or notary or ecclesiastical minister. — The penalty
of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer,
employee, or notary public who, taking advantage of his official position, shall falsify a document by
committing any of the following acts: . . . . 4. Making untruthful statements in a narration of facts.
xxx xxx xxx
Clearly, falsification of public documents has been committed by accused MAYOR LECAROZ.
Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able to draw salaries
from the municipality to which he was not entitled for services he had admittedly not rendered. This
constitutes Estafa . . . . the deceit being the falsification made, and the prejudice being that caused to
the municipality of Sta. Cruz, Marinduque for having paid salaries to LENLIE LECAROZ who was not
entitled thereto.
Conspiracy was alleged in the Informations herein, and the Court found the allegation sufficiently
substantiated by the evidence presented.
There is no justifiable reason why accused MAYOR LECAROZ should have reinstated his son LENLIE in
the municipal payrolls from January 16, 1986 to January 31, 1987, yet he did so. He could not have had
any other purpose than to enable his son LENLIE to draw salaries thereby. This conclusion inescapable
considering that the very purpose of a payroll is precisely that — to authorize the payment of salaries.
And LENLIE LECAROZ did his part by actually drawing the salaries during the periods covered, albeit
through another person whom he had authorized.
By the facts proven, there was conspiricy in the commission of Estafa between father and son.
However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3019, the Sandiganbayan
acquitted Mayor Francisco Lecaroz. It found that Red was neither authorized to sit as member of the
SB because he was not properly appointed thereto nor had he shown to the mayor sufficient basis for
his alleged right to a seat in the municipal council. On this basis, the court a quo concluded that Mayor
Lecaroz was legally justified in not allowing Red to assume the position of Kagawad.
On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision filed by
the accused. This prompted herein petitioners to elevate their cause to us charging that the
Sandiganbayan erred:
First, in holding that Red had validly and effectively assumed the office of KB Federation President by
virtue of his oath taken before then Assembly woman Carmencita Reyes on 27 September 1985, and in
concluding that the tenure of accused Lenlie Lecaroz as president of the KB and his coterminous term
of office as KB representative to the SB had accordingly expired;
Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth
representative to the SB had expired, in holding that accused Lenlie Lecaroz could no longer occupy the
office, even in a holdover capacity, despite the vacancy therein;
Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation president had
expired, in holding that by reason thereof accused Lenlie Lecaroz became legally disqualified from
continuing in office as KB Sectoral Representative to the SB even in a holdover capacity;
Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant to the provisions of
the pertinent Ministry of Interior and Local Governments (MILG) interpretative circulars, accused Lenlie
Lecaroz was legally entitled and even mandated to continue in office in a holdover capacity;
Fifth, in holding that the accused had committed the crime of falsification within the contemplation of
Art. 171 of The Revised Penal Code, and in not holding that the crime of estafa of which they, had been
convicted required criminal intent and malice as essential elements;
Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled to hold over, still the
trial court erred in not holding — considering the difficult legal questions involved — that the accused
acted in good faith and committed merely an error of judgment, without malice and criminal intent;
and,
Seventh, in convicting the accused for crimes committed in a manner different from that alleged in the
Information under which the accused were arraigned and tried.
The petition is meritorious. The basic propositions upon which the Sandiganbayan premised its
conviction of the accused are: (a) although Jowil Red was duly elected KB Chairman he could not validly
assume a seat in the Sanggunian as KB sectoral representative for failure to show a valid appointment;
and, (b) Lenlie Lecaroz who was the incumbent KB representative could not hold over after his term
expired because pertinent laws do not provide for holdover.
To resolve these issues, it is necessary to refer to the laws on the terms of office of KB youth sectoral
representatives to the SB and of the KB Federation Presidents. Section 7 of BP Blg. 51 and Sec. 1 of the
KB Constitution respectively provide —
Sec. 7. Term of office. — Unless sooner removed for cause, all local elective officials hereinabove
mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of
March 1980.
In the case of the members of the sanggunian representing the association of barangay councils and the
president of the federation of kabataan barangay, their terms of office shall be coterminous with their
tenure as president fo their respective association and federation.
xxx xxx xxx
Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until the last
Sunday of November 1985 or such time that the newly elected officers shall have qualified and assumed
office in accordance with this Constitution.
The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB since he
did not present an authenticated copy of his appointment papers; neither did he take a valid oath of
office. Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member of the SB although in
a holdover capacity since his term had already expired. The Sandiganbayan however rejected this
postulate declaring that the holdover provision under Sec. 1 quoted above pertains only to positions in
the KB, clearly implying that since no similar provision is found in Sec. 7 of B.P. Blg. 51, there can be no
holdover with respect to positions in the SB.
We disagree with the Sandiganbayan. The concept of holdover when applied to a public officer implies
that the office has a fixed term and the incumbent is holding onto the succeeding term. 6 It is usually
provided by law that officers elected or appointed for a fixed term shall remain in office not only for
that term but until their successors have been elected and qualified. Where this provision is found, the
office does not become vacant upon the expiration of the term if there is no successor elected and
qualified to assume it, but the present incumbent will carry over until his successor is elected and
qualified, even though it be beyond the term fixed by law. 7
In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to occupy
his post after the expiration of his term in case his successor fails to qualify, it does, not also say that he
is proscribed from holding over. Absent an express or implied constitutional or statutory provision to
the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has
qualified. 8 The legislative intent of not allowing holdover must be clearly expressed or at least implied
in the legislative enactment, 9 otherwise it is reasonable to assume that the law-making body favors the
same.
Indeed, the law abhors a vacuum in public offices, 10 and courts generally indulge in the strong
presumption against a legislative intent to create, by statute, a condition which may result in an
executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by
one lawfully authorized to exercise its functions. 11This is founded on obvious considerations of public
policy, for the principle of holdover is specifically intended to prevent public convenience from suffering
because of a vacancy 12 and to avoid a hiatus in the performance of government functions. 13
The Sandiganbayan maintained that by taking his oath of office before Assembly woman Reyes in 1985
Red validly assumed the presidency of the KB upon the expiration of the term of Lenlie Lecaroz. It should
be noted however that under the provisions of the Administrative Code then in force, specifically Sec.
21, Art. VI thereof, members of the then Batasang Pambansa were not authorized to administer oaths.
It was only after the approval of RA No. 673314 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.
(emphasis supplied).
Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the provincial
governor forwarded the papers of Jowil Red to then Minister of Interior and Local Government Aquilino
Pimentel, Jr., requesting advice on the validity of the appointment signed by former President Marcos.
The response was the issuance of MILG Provincial Memorandum-Circular No. 86-02 21 and
Memorandum-Circular No. 86-17 22 stating that —
PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02
2. That newly elected KB Federation Presidents, without their respective authenticated appointments
from the president, cannot, in any way, represent their associations in any sangguniang
bayan/sangguniang panlalawigan, as the case may be, although they are still considered presidents of
their federations by virtue of the July 1985 elections.
MEMORANDUM CIRCULAR NO. 86-17
It is informed, however, that until replaced by the Office of the President or by this Ministry the
appointive members of the various Sangguniang Bayan, Sangguniang Panlunsod, and the Sangguniang
Panlalawigan shall continue to hold office and to receive compensation due them under existing laws,
rules and regulations.
The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars virtually
confirmed the right of incumbent KB Federation Presidents to hold and maintain their positions until
duly replaced either by the President herself or by the Interior Ministry. Explicit therein was the caveat
that newly elected KB Federation Presidents could not assume the right to represent their respective
associations in any Sanggunian unless their appointments were authenticated by then President Aquino
herself. Truly, prudence impelled Mayor Lecaroz to take the necessary steps to verify the legitimacy of
Red's appointment to the Sanggunian.
Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of Presidents
Macapagal, Marcos and Aquino concerning the doctrine of holdover. These consistently expressed the
view espoused by the executive branch for more than thirty (30) years that the mere fixing of the term
of office in a statute without an express prohibition against holdover is not indicative of a legislative
intent to prohibit it, in light of the legal principle that just as nature abhors a vacuum so does the law
abhor a vacancy in the government. 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 disconhfort with this verdict basically for the reason that there was no criminal intent on their
part to falsify any document or to swindle the government.
The rule is that any mistake on a doubtful or difficult question of law may be the basis of good
faith. 25 In Cabungcal v. Cordova 26 we affirmed the doctrine that an erroneous interpretation of the
meaning of the provisions of an ordinance by a city mayor does not amount to bad faith that would
entitle an aggrieved party to damages against that official. We reiterated this principle in Mabutol
v. Pascual 27 which held that public officials may not be liable for damages in the discharge of their
official functions absent any bad faith. Sanders v. Veridiano II 28 expanded the concept by declaring that
under the law on public officers, acts done in the performance of official duty are protected by the
presumption of good faith.
In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2)
circumstances which purportedly indicated criminal intent. It pointed out that the name of accused
Lenlie Lecaroz was not in the municipal payroll for the first quincena of 1986 which meant that his term
had finally ended, and that the reinstatement of Lenlie Lecaroz by Mayor Francisco Lecaroz in the
payroll periods from 15 January 1986 and thereafter for the next twelve and a half (12-1/2) months was
for no other purpose than to enable him to draw salaries from the municipality. 29 There is however no
evidence, documentary or otherwise, that Mayor Francisco Lecaroz himself caused the name of Lenlie
Lecaroz to be dropped from the payroll for the first quincena of January 1986. On the contrary, it is
significant that while Lenlie Lecaroz' name did not appear in the payroll for the first quincena of January
1986, yet, in the payroll for the next quincena accused Lenlie Lecaroz was paid for both the first and
second quincenas, and not merely for the second half of the month which would have been the case if
he was actually "dropped" from the payroll for the first fifteen (15) days and then "reinstated" in the
succeeding payroll period, as held by the court a quo.
From all indications, it is possible that the omission was due to the inadequate documentation of Red's
appointment to and assumption of office, or the result of a mere clerical error which was later rectified
in the succeeding payroll. This however cannot be confirmed by the evidence at hand. But since a doubt
is now created about the import of such omission, the principle of equipoise should properly apply. This
rule demands that all reasonable doubt intended to demonstrate error and not a crime should be
resolved in favor of the accused. If the inculpatory facts and circumstances are capable of two or more
explanations, one of which is consistent with the innocence of the accused and the other with his guilt,
then the evidence does not fulfill the test of moral certainty and is not sufficient to support a
conviction. 30
Petitioners have been convicted for falsification of public documents through an untruthful narration
of facts under Art. 171, par. 4, of The Revised Penal Code. For the offense to be established, the
following elements must concur: (a) the offender makes in a document statements in a narration of
facts; (b) the offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts
narrated by the offender are absolutely false; and, (d) the perversion of truth in the narration of facts
was made with the wrongful intent of injuring a third person.
The first and third elements of the offense have not been established in this case. In approving the
payment of salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed uniformly-worded certifications
thus —
I hereby certify on my official oath that the above payroll is correct, and that the services above stated
have been duly rendered. Payment for such services is also hereby approved from the appropriations
indicated.
When Mayor Lecaroz certified to the correctness of the payroll, he was making not a narration of facts
but a conclusion of law expressing his belief that Lenlie Lecaroz was legally holding over as member of
the Sanggunian and thus entitled to the emoluments attached to the position. This is an opinion
undoubtedly involving a legal matter, and any "misrepresentation" of this kind cannot constitute the
crime of false pretenses. 31 In People v. Yanza 32 we
rulaed
Now then, considering that when defendant certified she was eligible for the position, she practically
wrote a conclusion of law which turned out to be inexact or erroneous — not entirely groundless — we
are all of the opinion that she may not be declared guilty of falsification, specially because the law which
she has allegedly violated (Art. 171, Revised Penal Code, in connection with other provisions), punishes
the making of untruthful statements in a narration of facts — emphasis on facts . . . . Unfortunately, she
made a mistake of judgment; but she could not be held thereby to have intentionally made a false
statement of fact in violation of Art. 171 above-mentioned.
The third element requiring that the narration of facts be absolutely false is not even adequately
satisfied as the belief of Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover member of the
Sanggunian was not entirely bereft of basis, anchored as it was on the universally accepted doctrine of
holdover. La mera inexactitude no es bastante para integrar este delito. 33 If the statements are not
altogether false, there being some colorable truth in them, the crime of falsification is deemed not to
have been committed.

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

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

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

SO ORDERED.
G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T.
CRUZ and MANUEL P. REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.
Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A. 7227,1 otherwise known as the "Bases Conversion and
Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was
appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is
challenged in this original petition with prayer for prohibition, preliminary injunction and temporary
restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries
and other operational expenses attached to the office . . . ."2 Paragraph (d) reads —
(d) Chairman administrator — The President shall appoint a professional manager as administrator of
the Subic Authority with a compensation to be determined by the Board subject to the approval of the
Secretary of Budget, who shall be the ex oficio chairman of the Board and who shall serve as the chief
executive officer of the Subic Authority: Provided, however, That for the first year of its operations from
the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and
chief executive officer of the Subic Authority (emphasis supplied).
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and
officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the Philippines,
maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on the following
constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states
that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public
officer or position during his tenure,"3 because the City Mayor of Olongapo City is an elective official
and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that
"[t]he President shall . . . . appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law to appoint",4since 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
19
Law, Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority
vested with the power, of an individual who is to exercise the functions of a given office."
Considering that appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., 20 "the choice of a person to fill an office constitutes the essence
of his appointment," 21and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an
executive act involving the exercise of discretion." 22 In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court 23 we held:
The power to appoint is, in essence, discretionary. The appointing power has the right of choice which
he may exercise freely according to his judgment, deciding for himself who is best qualified among
those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power
....
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee.
In other words, the choice of the appointee is a fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot
at the same time limit the choice of the President to only one candidate. Once the power of
appointment is conferred on the President, such conferment necessarily carries the discretion of whom
to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse
such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own
choice. Consequently, when the qualifications prescribed by Congress can only be met by one
individual, such enactment effectively eliminates the discretion of the appointing power to choose and
constitutes an irregular restriction on the power of appointment. 24
In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee
for the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the
appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one
can qualify for the posts in question, the President is precluded from exercising his discretion to choose
whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no
power at all and goes against the very nature itself of appointment.
While it may be viewed that the proviso merely sets the qualifications of the officer during the first year
of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on the President is a perfectly valid
legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative.
Since the ineligibility of an elective official for appointment remains all throughout his tenure or during
his incumbency, he may however resign first from his elective post to cast off the constitutionally-
attached disqualification before he may be considered fit for appointment. The deliberation in the
Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with TENURE.
MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his position.
MR. DAVIDE. Yes, we should allow that prerogative.
MR. FOZ. Resign from his position to accept an executive position.
MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may leave the
service, but if he is prohibited from being appointed within the term for which he was elected, we may
be depriving the government of the needed expertise of an individual. 25
Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to
another public office.
Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his
ineligibility, appointed to other government posts, he does not automatically forfeit his elective office
nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective
official is not eligible to the appointive position, his appointment or designation thereto cannot be valid
in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13,
Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold
any other office or employment in the Government . . . during his term without forfeiting his seat . . . ."
The difference between the two provisions is significant in the sense that incumbent national legislators
lose their elective posts only after they have been appointed to another government office, while other
incumbent elective officials must first resign their posts before they can be appointed, thus running the
risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that
ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is
expressly provided by law that a person holding one office shall be ineligible to another. Such a
provision is held to incapacitate the incumbent of an office from accepting or holding a second office
(State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE
721) and to render his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63
Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388,
40 ALR 941)." 26 "Where the constitution, or statutes declare that persons holding one office shall be
ineligible for election or appointment to another office, either generally or of a certain kind, the
prohibition has been held to incapacitate the incumbent of the first office to hold the second so that
any attempt to hold the second is void (Ala. — State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283
Ala 445)." 27
As incumbent elective official, respondent Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a
legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of
Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered
a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of
policy and justice, will hold valid so far as they involve the interest of the public and third persons,
where the duties of the office were exercised . . . . under color of a known election or appointment,
void because the officer was not eligible, or because there was a want of power in the electing or
appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of
power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or
pursuant to a public unconstitutional law, before the same is adjudged to be such (State vs. Carroll, 38
Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445,
23 Am. Rep., 323)." 28
Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other
emoluments which may have been received by respondent Gordon pursuant to his appointment may
be retained by him.
The illegality of his appointment to the SBMA posts being now evident, other matters affecting the
legality of the questioned proviso as well as the appointment of said respondent made pursuant thereto
need no longer be discussed.
In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in
the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated —
. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief Executive of this
Authority that we are creating; (much) as I, myself, would like to because I know the capacity, integrity,
industry and dedication of Mayor Gordon; (much) as we would like to give him this terrific, burdensome
and heavy responsibility, we cannot do it because of the constitutional prohibition which is very clear.
It says: "No elective official shall be appointed or designated to another position in any capacity." 29

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

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

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

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

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo and
Quiason, JJ., concur.

Padilla, J., is on leave.

G.R. No. 138965 June 30, 2006
PUBLIC INTEREST CENTER INC., LAUREANO T. ANGELES, and JOCELYN P. CELESTINO, Petitioners,
vs.
MAGDANGAL B. ELMA, as Chief Presidential Legal Counsel and as Chairman of the Presidential
Commission on Good Government, and RONALDO ZAMORA, as Executive Secretary, Respondents
DECISION
CHICO-NAZARIO, J.:
This is an original action for Certiorari, Prohibition, and Mandamus, with a Prayer for Temporary
Restraining Order/Writ of Preliminary Injunction filed on 30 June 1999.1 This action seeks to declare as
null and void the concurrent appointments of respondent Magdangal B. Elma as Chairman of the
Presidential Commission on Good Government (PCGG) and as Chief Presidential Legal Counsel (CPLC)
for being contrary to Section 13,2 Article VII and Section 7, par. 2,3 Article IX-B of the 1987 Constitution.
In addition, the petitioners further seek the issuance of the extraordinary writs of prohibition and
mandamus, as well as a temporary restraining order to enjoin respondent Elma from holding and
discharging the duties of both positions and from receiving any salaries, compensation or benefits from
such positions during the pendency of this petition.4 Respondent Ronaldo Zamora was sued in his
official capacity as Executive Secretary.
On 30 October 1998, respondent Elma was appointed and took his oath of office as Chairman of the
PCGG. Thereafter, on 11 January 1999, during his tenure as PCGG Chairman, respondent Elma was
appointed CPLC. He took his oath of office as CPLC the following day, but he waived any remuneration
that he may receive as CPLC.5
Petitioners cited the case of Civil Liberties Union v. Executive Secretary 6 to support their position that
respondent Elma’s concurrent appointments as PCGG Chairman and CPLC contravenes Section 13,
Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution. Petitioners also maintained that
respondent Elma was holding incompatible offices.
Citing the Resolution7 in Civil Liberties Union v. Executive Secretary, respondents allege that the strict
prohibition against holding multiple positions provided under Section 13, Article VII of the 1987
Constitution applies only to heads of executive departments, their undersecretaries and assistant
secretaries; it does not cover other public officials given the rank of Secretary, Undersecretary, or
Assistant Secretary.
Respondents claim that it is Section 7, par. 2, Article IX-B of the 1987 Constitution that should be applied
in their case. This provision, according to the respondents, would allow a public officer to hold multiple
positions if (1) the law allows the concurrent appointment of the said official; and (2) the primary
functions of either position allows such concurrent appointment. Respondents also alleged that since
there exists a close relation between the two positions and there is no incompatibility between them,
the primary functions of either position would allow respondent Elma’s concurrent appointments to
both positions. Respondents further add that the appointment of the CPLC among incumbent public
officials is an accepted practice.
The resolution of this case had already been overtaken by supervening events. In 2001, the appointees
of former President Joseph Estrada were replaced by the appointees of the incumbent president, Gloria
Macapagal Arroyo. The present PCGG Chairman is Camilo Sabio, while the position vacated by the last
CPLC, now Solicitor General Antonio Nachura, has not yet been filled. There no longer exists an actual
controversy that needs to be resolved. However, this case raises a significant legal question as yet
unresolved - whether the PCGG Chairman can concurrently hold the position of CPLC. The resolution of
this question requires the exercise of the Court’s judicial power, more specifically its exclusive and final
authority to interpret laws. Moreover, the likelihood that the same substantive issue raised in this case
will be raised again compels this Court to resolve it.8 The rule is that courts will decide a question
otherwise moot and academic if it is "capable of repetition, yet evading review."9
Supervening events, whether intended or accidental, cannot prevent the Court from rendering a
decision if there is a grave violation of the Constitution. Even in cases where supervening events had
made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar, and public.10
The merits of this case may now be discussed.
The issue in this case is whether the position of the PCGG Chairman or that of the CPLC falls under the
prohibition against multiple offices imposed by Section 13, Article VII and Section 7, par. 2, Article IX-B
of the 1987 Constitution, which provide that:
Art. VII .
xxxx
Section 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. x x x
Art. IX-B.
xxxx
Section 7. 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.
To harmonize these two provisions, this Court, in the case of Civil Liberties Union v. Executive
Secretary,11construed the prohibition against multiple offices contained in Section 7, Article IX-B and
Section 13, Article VII in this manner:
[T]hus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the primary
functions of their positions, members of the Cabinet, their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay
down the general rule applicable to all elective and appointive public officials and employees, while
Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President,
Members of the Cabinet, their deputies and assistants.
The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official to hold
more than one office only if "allowed by law or by the primary functions of his position." In the case of
Quimson v. Ozaeta,12this Court ruled that, "[t]here is no legal objection to a government official
occupying two government offices and performing the functions of both as long as there is no
incompatibility." The crucial test in determining whether incompatibility exists between two offices was
laid out in People v. Green13 - whether one office is subordinate to the other, in the sense that one
office has the right to interfere with the other.
[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x Where one
office is not subordinate to the other, nor the relations of the one to the other such as are inconsistent
and repugnant, there is not that incompatibility from which the law declares that the acceptance of the
one is the vacation of the other. The force of the word, in its application to this matter is, that from the
nature and relations to each other, of the two places, they ought not to be held by the same person,
from the contrariety and antagonism which would result in the attempt by one person to faithfully and
impartially discharge the duties of one, toward the incumbent of the other. x x x The offices must
subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other,
before they are incompatible at common law. x x x
In this case, an incompatibility exists between the positions of the PCGG Chairman and the CPLC. The
duties of the CPLC include giving independent and impartial legal advice on the actions of the heads of
various executive departments and agencies and to review investigations involving heads of executive
departments and agencies, as well as other Presidential appointees. The PCGG is, without question, an
agency under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the
review of the CPLC. In Memorandum Order No. 152, issued on 9 July 2004, the Office of the President,
in an effort to promote efficiency and effective coordination, clearly delineated and specified the
functions and duties of its senior officers as such:
SECTION 1. The Chief Presidential Legal Counsel (CPLC) shall advise and provide the President with legal
assistance on matters requiring her action, including matters pertaining to legislation.
The CPLC shall have the following duties and functions:
a. Exercise administrative supervision over the Office of the CPLC;
b. Review and/or draft legal orders referred to her by the President on the following matters that are
subject of decisions of the President;
1. Executive Orders, proclamations, administrative orders, memorandum orders, and other legal
documents initiated by the President;
2. Decision on investigation involving Cabinet Secretaries, agency heads, or Presidential appointees with
the rank of Secretary conducted by the Presidential Anti-Graft Commission (PAGC);14
As CPLC, respondent Elma will be required to give his legal opinion on his own actions as PCGG Chairman
and review any investigation conducted by the Presidential Anti-Graft Commission, which may involve
himself as PCGG Chairman. In such cases, questions on his impartiality will inevitably be raised. This is
the situation that the law seeks to avoid in imposing the prohibition against holding incompatible
offices.
Having thus ruled that Section 7, Article IX-B of the 1987 Constitution enjoins the concurrent
appointments of respondent Elma as PCGG Chairman and CPLC inasmuch as they are incompatible
offices, this Court will proceed to determine whether such appointments violate the other
constitutional provision regarding multiple offices, Section 13, Article VII of the 1987 Constitution.
While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and appointive
officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries, undersecretaries and
assistant secretaries. In the Resolution in Civil Liberties Union v. Executive Secretary, 15 this Court
already clarified the scope of the prohibition provided in Section 13, Article VII of the 1987 Constitution.
Citing the case of US v. Mouat16 , it specifically identified the persons who are affected by this
prohibition as secretaries, undersecretaries and assistant secretaries; and categorically excluded public
officers who merely have the rank of secretary, undersecretary or assistant secretary.
Another point of clarification raised by the Solicitor General refers to the persons affected by the
constitutional prohibition. The persons cited in the constitutional provision are the "Members of the
Cabinet, their deputies and assistants." These terms must be given their common and general
acceptation as referring to the heads of the executive departments, their undersecretaries and assistant
secretaries. Public officials given the rank equivalent to a Secretary, Undersecretary, or Assistant
Secretary are not covered by the prohibition, nor is the Solicitor General affected thereby.
(Underscoring supplied.)
It is clear from the foregoing that the strict prohibition under Section 13, Article VII of the 1987
Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a secretary,
undersecretary, nor an assistant secretary, even if the former may have the same rank as the latter
positions.
It must be emphasized, however, that despite the non-applicability of Section 13, Article VII of the 1987
Constitution to respondent Elma, he remains covered by the general prohibition under Section 7, Article
IX-B and his appointments must still comply with the standard of compatibility of officers laid down
therein; failing which, his appointments are hereby pronounced in violation of the Constitution.
Granting that the prohibition under Section 13, Article VII of the 1987 Constitution is applicable to the
present case, the defect in respondent Elma’s concurrent appointments to the incompatible offices of
the PCGG Chairman and the CPLC would even be magnified when seen through the more stringent
requirements imposed by the said constitutional provision. In the aforecited case Civil Liberties Union
v. Executive Secretary,17 the Court stressed that the language of Section 13, Article VII is a definite and
unequivocal negation of the privilege of holding multiple offices or employment. The Court cautiously
allowed only two exceptions to the rule against multiple offices: (1) those provided for under the
Constitution, such as Section 3, Article VII, authorizing the Vice-President to become a member of the
Cabinet; or (2) posts occupied by the Executive officials specified in Section 13, Article VII without
additional compensation in an ex-officio capacity as provided by law and as required by the primary
functions of said officials’ office. The Court further qualified that additional duties must not only be
closely related to, but must be required by the official’s primary functions. Moreover, the additional
post must be exercised in an ex-officio capacity, which "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."18 Thus, it will not suffice that no additional compensation shall be received by virtue of the
second appointment, it is mandatory that the second post is required by the primary functions of the
first appointment and is exercised in an ex-officio capacity.

With its forgoing qualifications, it is evident that even Section 13, Article VII does not sanction this dual
appointment. Appointment to the position of PCGG Chairman is not required by the primary functions
of the CPLC, and vice versa. The primary functions of the PCGG Chairman involve the recovery of ill-
gotten wealth accumulated by former President Ferdinand E. Marcos, his family and associates, the
investigation of graft and corruption cases assigned to him by the President, and the adoption of
measures to prevent the occurrence of corruption.19 On the other hand, the primary functions of the
CPLC encompass a different matter, that is, the review and/or drafting of legal orders referred to him
by the President.20 And while respondent Elma did not receive additional compensation in connection
with his position as CPLC, he did not act as either CPLC or PGCC Chairman in an ex-officio capacity. The
fact that a separate appointment had to be made for respondent Elma to qualify as CPLC negates the
premise that he is acting in an ex-officio capacity.

In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does not apply to respondent
Elma since neither the PCGG Chairman nor the CPLC is a Cabinet secretary, undersecretary, or assistant
secretary. Even if this Court assumes, arguendo, that Section 13, Article VII is applicable to respondent
Elma, he still could not be appointed concurrently to the offices of the PCGG Chairman and CPLC
because neither office was occupied by him in an ex-officio capacity, and the primary functions of one
office do not require an appointment to the other post. Moreover, even if the appointments in question
are not covered by Section 13, Article VII of the 1987 Constitution, said appointments are still prohibited
under Section 7, Article IX-B, which covers all appointive and elective officials, due to the incompatibility
between the primary functions of the offices of the PCGG Chairman and the CPLC.

WHEREFORE, premises considered, this Court partly GRANTS this petition and declares respondent
Magdangal B. Elma’s concurrent appointments as PCGG Chairman and CPLC as unconstitutional. No
costs.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice
A.M. No. 88-7-1861-RTC October 5, 1988
IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF THE ILOCOS NORTE
PROVINCIAL COMMITTEE ON JUSTICE.
PADILLA, J.:
On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui, Ilocos Norte, Branch 19, sent
this Court a letter which reads:
Hon. Marcelo Fernan
Chief Justice of the Supreme Court
of the Philippines
Manila
Thru channels: Hon. Leo Medialdea
Court Administrator
Supreme Court of the Philippines
Sir:
By Executive Order RF6-04 issued on June 21, 1988 by the Honorable Provincial Governor of Ilocos
Norte, Hon. Rodolfo C. Farinas, I was designated as a member of the Ilocos Norte Provincial Committee
on Justice created pursuant to Presidential Executive Order No. 856 of 12 December 1986, as amended
by Executive Order No. 326 of June 1, 1988. In consonance with Executive Order RF6-04, the Honorable
Provincial Governor of Ilocos Norte issued my appointment as a member of the Committee. For your
ready reference, I am enclosing herewith machine copies of Executive Order RF6-04 and the
appointment.
Before I may accept the appointment and enter in the discharge of the powers and duties of the position
as member of the Ilocos (Norte) Provincial Committee on Justice, may I have the honor to request for
the issuance by the Honorable Supreme Court of a Resolution, as follows:
(1) Authorizing me to accept the appointment and to as assume and discharge the powers and duties
attached to the said position;
(2) Considering my membership in the Committee as neither violative of the Independence of the
Judiciary nor a violation of Section 12, Article VIII, or of the second paragraph of Section .7, Article IX
(B), both of the Constitution, and will not in any way amount to an abandonment of my present position
as Executive Judge of Branch XIX, Regional Trial Court, First Judicial Region, and as a member of the
Judiciary; and
(3) Consider my membership in the said Committee as part of the primary functions of an Executive
Judge.
May I please be favored soon by your action on this request.
Very respectfully yours,
(Sgd) RODOLFO U. MANZANO
Judge
An examination of Executive Order No. 856, as amended, reveals that Provincial/City Committees on
Justice are created to insure the speedy disposition of cases of detainees, particularly those involving
the poor and indigent ones, thus alleviating jail congestion and improving local jail conditions. Among
the functions of the Committee are—
3.3 Receive complaints against any apprehending officer, jail warden, final or judge who may be found
to have committed abuses in the discharge of his duties and refer the same to proper authority for
appropriate action;
3.5 Recommend revision of any law or regulation which is believed prejudicial to the proper
administration of criminal justice.
It is evident that such Provincial/City Committees on Justice perform administrative functions.
Administrative functions are those which involve the regulation and control over the conduct and affairs
of individuals for; their own welfare and the promulgation of rules and regulations to better carry out
the policy of the legislature or such as are devolved upon the administrative agency by the organic law
of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc., vs. Tapucar, SP-07599-R, 29
September 1978, Blacks Law Dictionary).
Furthermore, under Executive Order No. 326 amending Executive Order No. 856, it is provided that—
Section 6. Supervision.—The Provincial/City Committees on Justice shall be under the supervision of the
Secretary of justice Quarterly accomplishment reports shall be submitted to the Office of the Secretary
of Justice.
Under the Constitution, the members of the Supreme Court and other courts established by law shag
not be designated to any agency performing quasi- judicial or administrative functions (Section 12, Art.
VIII, Constitution).
Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice,
which discharges a administrative functions, will be in violation of the Constitution, the Court is
constrained to deny his request.
Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig
(39 SCRA 106) ably sets forth:
2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic rigor,
the practical demands of government precluding its doctrinaire application, it cannot justify a member
of the judiciary being required to assume a position or perform a duty non-judicial in character. That is
implicit in the principle. Otherwise there is a plain departure from its command. The essence of the
trust reposed in him is to decide. Only a higher court, as was emphasized by Justice Barredo, can pass
on his actuation. He is not a subordinate of an executive or legislative official, however eminent. It is
indispensable that there be no exception to the rigidity of such a norm if he is, as expected, to be
confined to the task of adjudication. Fidelity to his sworn responsibility no less than the maintenance
of respect for the judiciary can be satisfied with nothing less.

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

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

SO ORDERED.

Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur.
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 Valdezand 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.

Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

G.R. No. 90762 May 20, 1991
LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner,
vs.
LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive of the Province
of Leyte and Head of SANGGUNIANG PANLALAWIGAN and Leyte Provincial Treasurer FLORENCIO
LUNA,respondents.
Zozimo G. Alegre for petitioner.
The Provincial Attorney for respondents.
RESOLUTION
GUTIERREZ, JR., J.:
This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially
denied the petition for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D.
Menzon. In the August 28 resolution, the Court stated that Mr. Menzon cannot successfully assert the
right to be recognized as Acting Vice-Governor and, therefore, his designation was invalid. In this
motion, the primary issue is the right to emoluments while actually discharging the duties of the office.
The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had
been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated
the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang
Panlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor for the province
of Leyte.
The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988.
On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of
the Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of
the petitioner to act as the Vice-Governor of Leyte.
In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337
has no provision relating to succession in the Office of the Vice-Governor in case of a temporary
vacancy, the appointment of the petitioner as the temporary Vice- Governor is not necessary since the
Vice-Governor who is temporarily performing the functions of the Governor, could concurrently assume
the functions of both offices.
As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the
Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it
held invalid the appointment of the petitioner as acting Vice-Governor of Leyte. The pertinent portion
of the resolution reads:
WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is that there is no
permanent (sic) nor a vacancy in said office. The Honorable Leopoldo E. Petilla assumed the Office of
the Vice-Governor after he took his oath of office to said position.
WHEREAS, it is the duty of the members of the Board not only to take cognizance of the aforesaid
official communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law.
WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable Rogelio
L. Granados and the Honorable Renato M. Rances.
RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting Vice-
Governor of Leyte. (Rollo, p. 27)
The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought
clarification from Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion.
On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion.1âwphi1 The
pertinent portion of the letter reads:
This has reference to your letter dated July 10, 1989, requesting for clarification of our letter to
Provincial Administrator Tente U. Quintero dated June 22, 1989, which states in substance, that "there
is no succession provided for in case of temporary vacancy in the office of the vice-governor and that
the designation of a temporary vice-governor is not necessary.
We hold the view that the designation extended by the Secretary of Local Government in favor of one
of the Sangguniang Panlalawigan Members of Leyte to temporarily discharge the powers and duties of
the vice-governor during the pendency of the electoral controversy in the Office of the Governor, does
not contradict the stand we have on the matter. The fact that the Sangguniang Panlalawigan member
was temporarily designated to perform the functions of the vice-governor could not be considered that
the Sangguniang member succeeds to the office of the latter, for it is basic that designation is merely
an imposition of additional duties to be performed by the designee in addition to the official functions
attached to his office. Furthermore, the necessity of designating an official to temporarily perform the
functions of a particular public office, would depend on the discretion of the appointing authority and
the prevailing circumstances in a given area and by taking into consideration the best interest of public
service.
On the basis of the foregoing and considering that the law is silent in case of temporary vacancy, in the
Office of the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the
electoral controversy in the Office of the Governor has not yet been settled, calls for the designation of
the Sangguniang Member to act as vice-governor temporarily. (Rollo, p. 31)
In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department
of Local Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to
the Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the
Sangguniang Panlalawigan be modified accordingly. The letter states:
In view thereof, please correct previous actions made by your office and those of the Sangguniang
Panlalawigan which may have tended to discredit the validity of Atty. Aurelio Menzon's designation as
acting vice-governor, including the payment of his salary as Acting Vice-Governor, if he was deprived of
such. (Rollo, p. 32)
On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating
his earlier request.
Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan,
refused to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments
attached to the Office of Vice-Governor.
Thus, on November 12, 1989, the petitioner filed before this Court a petition
for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the
payment of his salary for his services as the acting Vice-Governor of Leyte.
In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal
was proclaimed the Governor of the province of Leyte.
During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of
Leyte, Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of
Leyte in the amount of P17,710.00, for the actual services rendered by the petitioner as acting Vice-
Governor.
On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon.
On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested
Governor Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments
and compensation which he received while acting as the Vice-Governor of Leyte.
On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion
prayed that this Court uphold the petitioner's right to receive the salary and emoluments attached to
the office of the Vice-Governor while he was acting as such.
The petitioner interposes the following reason for the allowance of the motion for reconsideration:
THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES RENDERED AS
DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF GOOD FAITH. SIMPLE JUSTICE AND
EQUITY.
The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?; and 2)
Whether or not the Secretary of Local Government has the authority to make temporary
appointments?
The respondents argue that there exists no vacancy in the Office of the Vice-Governor which requires
the appointment of the petitioner. They further allege that if indeed there was a need to appoint an
acting Vice-Governor, the power to appoint is net vested in the Secretary of Local Government. Absent
any provision in the Local Government Code on the mode of succession in case of a temporary vacancy
in the Office of the Vice-Governor, they claim that this constitutes an internal problem of the
Sangguniang Panlalawigan and was thus for it solely to resolve.
The arguments are of doubtful validity.
The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied
by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully
authorized to assume and exercise at present the duties of the office. (see Stocking v. State, 7 Ind. 326,
cited in Mechem. A Treatise on the Law on Public Offices and Officers, at p. 61)
Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor
was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor.
In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to
exercise the duties of the office of the Vice-Governor.
There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of
the Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the
duties of a Provincial Governor call for a full-time occupant to discharge them. More so when the
vacancy is for an extended period. Precisely, it was Petilla's automatic assumption to the acting
Governorship that resulted in the vacancy in the office of the Vice-Governor. The fact that the Secretary
of Local Government was prompted to appoint the petitioner shows the need to fill up the position
during the period it was vacant. The Department Secretary had the discretion to ascertain whether or
not the Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful
if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority.
Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local
Government had the authority to designate the petitioner.
We hold in the affirmative.
The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in
the Office of the Vice-Governor. However, the silence of the law must not be understood to convey that
a remedy in law is wanting.
The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting
Vice-Governor. For about two years after the governatorial elections, there had been no de
jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not
yet been proclaimed due to a pending election case before the Commission on Elections.
The two-year interregnum which would result from the respondents' view of the law is disfavored as it
would cause disruptions and delays in the delivery of basic services to the people and in the proper
management of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to
leave the situation without affording any remedy was ever intended by the Local Government Code.
Under the circumstances of this case and considering the silence of the Local Government Code, the
Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy,
the President, acting through her alter ego, the Secretary of Local Government, may remedy the
situation. We declare valid the temporary appointment extended to the petitioner to act as the Vice-
Governor. The exigencies of public service demanded nothing less than the immediate appointment of
an acting Vice-Governor.
The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar
corrected and reconsidered his previous position and acknowledged the need for an acting Vice-
Governor.
It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987,
the President is empowered to make temporary appointments in certain public offices, in case of any
vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions.
However, in the absence of any contrary provision in the Local Government Code and in the best
interest of public service, we see no cogent reason why the procedure thus outlined by the two laws
may not be similarly applied in the present case. The respondents contend that the provincial board is
the correct appointing power. This argument has no merit. As between the President who has
supervision over local governments as provided by law and the members of the board who are junior
to the vice-governor, we have no problem ruling in favor of the President, until the law provides
otherwise.
A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the
constituents of their right of representation and governance in their own local government.
In a republican form of government, the majority rules through their chosen few, and if one of them is
incapacitated or absent, etc., the management of governmental affairs to that extent, may be
hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people
of Leyte if the Governor or the Vice-Governor is missing.
Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte, is for
higher officials to decide or, in proper cases, for the judiciary to adjudicate. As shown in this case where
for about two years there was only an acting Governor steering the leadership of the province of Leyte,
the urgency of filling the vacancy in the Office of the Vice-Governor to free the hands of the acting
Governor to handle provincial problems and to serve as the buffer in case something might happen to
the acting Governor becomes unquestionable. We do not have to dwell ourselves into the fact that
nothing happened to acting Governor Petilla during the two-year period. The contingency of having
simultaneous vacancies in both offices cannot just be set aside. It was best for Leyte to have a full-time
Governor and an acting Vice-Governor. Service to the public is the primary concern of those in the
government. It is a continuous duty unbridled by any political considerations.
The appointment of the petitioner, moreover, is in full accord with the intent behind the Local
Government Code. There is no question that Section 49 in connection with Section 52 of the Local
Government Code shows clearly the intent to provide for continuity in the performance of the duties
of the Vice-Governor.
The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz:
Section 49:
In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . .
refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise
permanently incapacitated to discharge the functions of his office the sangguniang panlalawigan . . .
member who obtained the highest number of votes in the election immediately preceding, . . . shall
assume the office for the unexpired term of the Vice-Governor. . . .
By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent
vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case,
there was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang
Panlalawigan who obtained the highest number of votes. The Department Secretary acted correctly in
extending the temporary appointment.
In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice
Governor is indubitable. The compensation, however, to be remunerated to the petitioner, following
the example in Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the
proscription against double compensation must only be such additional compensation as, with his
existing salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor.
And finally, even granting that the President, acting through the Secretary of Local Government,
possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer
entitled to compensation.
There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known
appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of
the President, the Secretary of Local Government, after which he took his oath of office before Senator
Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity. The respondents themselves acknowledged the
validity of the petitioner's appointment and dealt with him as such. It was only when the controversial
Resolution No. 505 was passed by the same persons who recognized him as the acting Vice-Governor
that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn.
The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-
Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which
the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now
deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the
province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974])
WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional compensation
which the petitioner has received, in the amount exceeding the salary authorized by law for the position
of Senior Board Member, shall be considered as payment for the actual services rendered as acting
Vice-Governor and may be retained by him.
SO ORDERED.
G.R. No. L-23258 July 1, 1967
ROBERTO R. MONROY, petitioner,
vs.
HON. COURT OF APPEALS and FELIPE DEL ROSARIO, respondent.
E. M. Fernando, E. Quisumbing-Fernando and Norberto Quisumbing for petitioner.
Sycip, Salazar, Luna and Associates for respondents.
BENGZON, J.P., J.:
Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when on September 15, 1961,
his certificate of candidacy as representative of the first district of Rizal in the forthcoming elections
was filed with the Commission on Elections. Three days later, or on September 18, 1961, petitioner filed
a letter withdrawing said certificate of candidacy. The Commission on Elections, per
resolution,1 approved the withdrawal. But on September 21, 1961, respondent Felipe del Rosario, then
the vice-mayor of Navotas, took his oath of office as municipal mayor on the theory that petitioner had
forfeited the said office upon his filing of the certificate of candidacy in question.
Upon these facts, the Court of First Instance of Rizal, held in the suit for injunction instituted by
petitioner against respondents that (a) the former had ceased to be mayor of Navotas, Rizal, after his
certificate of candidacy was filed on September 15, 1961; (b) respondent del Rosario became municipal
mayor upon his having assumed office as such on September 21, 1961; (c) petitioner must reimburse,
as actual damages, the salaries to which respondent was entitled as Mayor from September 21, 1961
up to the time he can reassume said office; and (d) petitioner must pay respondent P1,000.00 as moral
damages.1äwphï1.ñët
This judgment was, on appeal by petitioner to the Court of Appeals, affirmed in toto except for the
award of moral damages which was eliminated. The same Court reaffirmed its stand upon petitioner's
filing a motion to reconsider. Hence, this petition for certiorari to review the ruling of the Court of
Appeals.
Petitioner first argues that both the lower court and the Court of Appeals had done what they had no
jurisdiction to do — review a resolution of the Commission on Elections. The submission is without
merit.
The Constitution empowers the Commission on Elections to
x x x decide, save those involving the right to vote, all administrative questions affecting elections,
including the determination of the number and location of polling places, and the appointment of
election inspectors and of other election officials x x x . 2 (Emphasis supplied)
And the decisions, orders and rulings of the Commission on these administrative questions are
reviewable only by the Supreme Court.3 Since the powers of the Commission are limited to matters
connected with the "conduct of elections," necessarily its adjudicatory or quasi-judicial powers are
likewise limited to controversies connected with the "conduct of elections." This phrase covers all the
administrative process of preparing and operating the election machinery so that the people could
exercise their right to vote at the given time.4 All questions and controversies that may arise therefrom
are to be resolved exclusively by the Commission, subject to review only by the Supreme Court.
However, in this case there appears to be no decision, order or ruling of the Commission on
any administrative question or controversy. There was no dispute before the Commission. Respondent
never contested the filing of petitioner's certificate of candidacy. Neither has he disputed before that
body the withdrawal thereof. And even if there was a controversy before the Commission, the same
did not and could not possibly have anything to do with the conduct of elections. What the parties are
actually controverting is whether or not petitioner was still the municipal mayor after September 15,
1961. This purely legal dispute has absolutely no bearing or effect on the conduct of the elections for
the seat of Congressman for the first district of Rizal. The election can go on irrespective of whether
petitioner is considered resigned from his position of municipal mayor or not. The only interest and for
that matter, jurisdiction, of the Commission on Elections in this regard is to know who are the running
candidates for the forthcoming elections, for that affects the conduct of election. So when petitioner
withdrew the certificate announcing his candidacy for Congressman, as far as the Commission could be
concerned, petitioner was no longer interested in running for that seat. The matter of his having
forfeited his present position and the possible legal effect thereon by the withdrawal of his certificate
was completely out of the picture. Hence, that purely legal question properly fell within the cognizance
of the courts.
Now the withdrawal of his certificate of candidacy did not restore petitioner to his former position. Sec.
27 of the Rev. Election Code providing that —
Any elective provincial, municipal or city official running for an office, other then the one which he is
actually holding, shall be considered resigned from his office from the moment of the filing of his
certificate of candidacy,"
makes the forfeiture automatic and permanently effective upon the filing of the certificate of for
another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat
is forfeited forever and nothing save a new election or appointment can restore the ousted official.
Thus, as We had occasion to remark, through Justice J.B.L. Reyes, in Castro v. Gatuslao, 98 Phil, 94, 196:
x x x The wording of the law plainly indicates that only the date of filing of the certificate of candidacy
should be taken into account. The law does not make the forfeiture dependent upon future
contingencies, unforeseen and unforeseeable since the vacating is expressly made as of the moment of
the filing of the certificate of candidacy x x x . (Emphasis supplied)
Petitioner's contention that the certificate of candidacy was filed without his knowledge and consent
and, hence, the Commission's approval of its withdrawal invalidated such certificate for all legal
purposes, is untenable. It nowhere appears that the Commission's resolution expressly invalidated the
certificate. The withdrawal of a certificate of candidacy does not necessarily render the certificate
void ab initio. Once filed, the permanent legal effects produced thereby remain even if the certificate
itself be subsequently withdrawn. Moreover, both the trial court and the Court of Appeals expressly
found as a fact that the certificate in question was filed with petitioner's knowledge and consent. And
since the nature of the remedy taken by petitioner before Us would allow a discussion of purely legal
questions only, such fact is deemed conceded.5
Petitioner would next maintain that respondent Court of Appeals likewise erred in affirming a lower
court judgment requiring petitioner to pay respondent Del Rosario by way of actual damages the
salaries he was allegedly entitled to receive from September 21, 1961, to the date of petitioner's
vacation of his office as mayor. In support of this he relies solely upon Rodriguez v. Tan, 91 Phil. 724,
holding that a senator who had been proclaimed and had assumed office but was later on ousted in an
election protest, is a de facto officer during the time he held the office of senator, and can retain the
emoluments received even as against the successful protestant. Petitioner's factual premise is the
appellate court's finding that he was a de facto officer when he continued occupying the office of mayor
after September 15, 1961.

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

It is the general rule then, i.e., "that the rightful incumbent of a public office may recover from an
officer de facto the salary received by the latter during the time of his wrongful tenure, even though he
entered into the office in good faith and under color of title"6 that applies in the present case. The
resulting hardship occasioned by the operation of this rule to the de facto officer who did actual work
is recognized; but it is far more cogently acknowledged that the de facto doctrine has been formulated,
not for the protection of the de facto officer principally, but rather for the protection of the public and
individuals who get involved in the official acts of persons discharging the duties of an office without
being lawful officers.7 The question of compensation involves different principles and concepts
however. Here, it is possession of title, not of the office, that is decisive. A de facto officer, not having
good title, takes the salaries at his risk and must therefore account to the de jure officer for whatever
amount of salary he received during the period of his wrongful retention of the public office.8

Wherefore, finding no error in the judgment appealed from, the same is, as it is hereby, affirmed in
toto. Costs against petitioner. So ordered.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, and Angeles, JJ., concur.
Arsenio, J., is on leave.
Sanchez, Castro and Fernando, JJ., took no part.
G.R. No. 120193 March 6, 1996
LUIS MALALUAN, petitioner,
vs.
COMMISSION ON ELECTIONS and JOSEPH EVANGELISTA, respondents.
HERMOSISIMA, JR., J.:p
Novel is the situation created by the decision of the Commission on Elections which declared the winner
in an election contest and awarded damages, consisting of attorney's fees, actual expenses for xerox
copies, unearned salary and other emoluments for the period, from March, 1994 to April, 1995, en
masse denominated as actual damages, notwithstanding the fact that the electoral controversy had
become moot and academic on account of the expiration of the term of office of the Municipal Mayor
of Kidapawan, North Cotabato.
Before us is a petition for certiorari and prohibition, with a prayer for the issuance of a temporary
restraining order and writ of preliminary injunction, seeking the review of the decision en banc1 of the
Commission of Elections (COMELEC) denying the motion for reconsideration of the decision 2 of its First
Division,3 which reversed the decision4 of the Regional Trial Court5 in the election case6 involving the
herein parties. While the Regional Trial Court had found petitioner Luis Malaluan to be the winner of
the elections for the position of Municipal Mayor of Kidapawan, North Cotabato, the COMELEC, on the
contrary, found private respondent Joseph Evangelista to be the rightful winner in said elections.
Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty candidates in
the Municipality of Kidapawan, North Cotabato, in the Synchronized National and Local Elections held
on May 11, 1992. Private respondent Joseph Evangelista was proclaimed by the Municipal Board of
Canvassers as the duly elected Mayor for having garnered 10,498 votes as against petitioner's 9,792
votes. Evangelista was, thus, said to have a winning margin of 706 votes. But, on May 22, 1992,
petitioner filed an election protest with the Regional Trial Court contesting 64 out of the total 181
precincts of the said municipality. The trial court declared petitioner as the duly elected municipal
mayor of Kidapawan, North Cotabato with a plurality of 154 votes. Acting without precedent, the court
found private respondent liable not only for Malaluan's protest expenses but also for moral and
exemplary damages and attorney's fees. On February 3, 1994, private respondent appealed the trial
court decision to the COMELEC.
Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for execution pending appeal.
The motion was granted by the trial court, in an order, dated March 8, 1994, after petitioner posted a
bond in the amount of P500,000.00. By virtue of said order, petitioner assumed the office of Municipal
Mayor of Kidapawan, North Cotabato, and exercised the powers and functions of said office. Such
exercise was not for long, though. In the herein assailed decision adverse to Malaluan's continued
governance of the Municipality of Kidapawan, North Cotabato, the First Division of the Commission on
Elections (COMELEC) ordered Malaluan to vacate the office, said division having found and so declared
private respondent to be the duly elected Municipal Mayor of said municipality. The COMELEC en
banc affirmed said decision.
Malaluan filed this petition before us on May 31, 1995 as a consequence.
It is significant to note that the term of office of the local officials elected in the May, 1992 elections
expired on June 30, 1995. This petition, thus, has become moot and academic insofar as it concerns
petitioner's right to the mayoralty seat in his municipality7 because expiration of the term of office
contested in the election protest has the effect of rendering the same moot and academic. 8
When the appeal from a decision in an election case has already become moot, the case being an
election protest involving the office of mayor the term of which had expired, the appeal is dismissible
on that ground, unless the rendering of a decision on the merits would be of practical value. 9 This rule
we established in the case of Yorac vs. Magalona 10 which we dismissed because it had been mooted
by the expiration of the term of office of the Municipal Mayor of Saravia, Negros Occidental. This was
the object of contention between the parties therein. The recent case of Atienza vs. Commission on
Elections, 11 however, squarely presented the situation that is the exception to that rule.
Comparing the scenarios in those two cases, we explained:
Second, petitioner's citation of Yorac vs. Magalona as authority for his main proposition is grossly
inappropriate and misses the point in issue. The sole question in that case centered on an election
protest involving the mayoralty post in Saravia, Negros Occidental in the general elections of 1955,
which was rendered moot and academic by the expiration of the term of office in December, 1959. It
did not involve a monetary award for damages and other expenses incurred as a result of the election
protest. In response to the petitioner's contention that the issues presented before the court were
novel and important and that the appeal should not be dismissed, the Court held — citing the same
provision of the Rules of Court upon which petitioner staunchly places reliance — that a decision on
the merits in the case would have no practical value at all, and forthwith dismissed the case for being
moot. That is not the case here. In contradistinction to Yorac, a decision on the merits in the case at
bench would clearly have the practical value of either sustaining the monetary award for damages or
relieving the private respondent from having to pay the amount thus awarded. 12
Indeed, this petition appears now to be moot and academic because the herein parties are contesting
an elective post to which their right to the office no longer exists. However, the question as to damages
remains ripe for adjudication. The COMELEC found petitioner liable for attorney's fees, actual expenses
for xerox copies, and unearned salary and other emoluments from March, 1994 to April, 1995, en masse
denominated as actual damages, default in payment by petitioner of which shall result in the collection
of said amount from the bond posted by petitioner on the occasion of the grant of his motion for
execution pending appeal in the trial court. Petitioner naturally contests the propriety and legality of
this award upon private respondent on the ground that said damages have not been alleged and proved
during trial.
What looms large as the issue in this case is whether or not the COMELEC gravely abused its discretion
in awarding the aforecited damages in favor of private respondent.
The Omnibus Election Code provides that "actual or compensatory damages may be granted in all
election contests or in quo warranto proceedings in accordance with law." 13 COMELEC Rules of
Procedure provide that "in all election contests the Court may adjudicate damages and attorney's fees
as it may deem just and as established by the evidence if the aggrieved party has included such claims
in his pleadings." 14 This appears to require only that the judicial award of damages be just and that the
same be borne out by the pleadings and evidence The overriding requirement for a valid and proper
award of damages, it must be remembered, is that the same is in accordance with law, specifically, the
provisions of the Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that "except as provided by law or by stipulation, one is entitled
to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages." The Civil Code further prescribes the
proper setting for allowance of actual or compensatory damages in the following provisions:
Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith
is liable shall be those that are the natural and probable consequences of the breach of the obligation,
and which the parties have foreseen or could have reasonably foreseen at the time the obligation was
constituted.
In case of fraud, bad faith, malice or wanton attitude, the obliger shall be responsible for all damages
which may be reasonably attributed to the non-performance of the obligation.
Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural
and probable consequences of the act or omission complained of. It is not necessary that such damages
have been foreseen or could have reasonably been foreseen by the defendant.
Considering that actual or compensatory damages are appropriate only in breaches of obligations in
cases of contracts and quasi-contracts and on the occasion of crimes and quasi-delicts where the
defendant may be held liable for all damages the proximate cause of which is the act or omission
complained of, the monetary claim of a party in an election case must necessarily be hinged on either
a contract or a quasi-contract or a tortious act or omission or a crime, in order to effectively recover
actual or compensatory damages. 15 In the absence of any or all of these, "the claimant must be able to
point out a specific provision of law authorizing a money claim for election protest expenses against
the losing party" 16. For instance, the claimant may cite any of the following provisions of the Civil Code
under the chapter on human relations, which provisions create obligations not by contract, crime or
negligence, but directly by law:
Art. 19. Every person must in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.
xxx xxx xxx
Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another
person shall be liable to the latter for damages:
xxx xxx xxx
(5) Freedom of suffrage;
In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes
a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil
action for damages, and for other relief. . . . 17
Claimed as part of the damages to which private respondent is allegedly entitled to, is P169,456.00
constituting salary and other emoluments from March, 1994 to April, 1995 that would have accrued to
him had there not been an execution of the trial court's decision pending appeal therefrom in the
COMELEC.
The long-standing rule in this jurisdiction is that notwithstanding his subsequent ouster as a result of
an election protest, an elective official who has been proclaimed by the COMELEC as winner in an
electoral contest and who assumed office and entered into the performance of the duties of that office,
is entitled to the compensation, emoluments and allowances legally provided for the position. 18 We
ratiocinated in the case of Rodriguez vs. Tanthat:
This is as it should be. This is in keeping with the ordinary course of events. This is simple justice. The
emolument must go to the person who rendered the service unless the contrary is provided. There is
no averment in the complaint that he is linked with any irregularity vitiating his election. This is the
policy and the rule that has been followed consistently in this jurisdiction in connection with positions
held by persons who had been elected thereto but were later ousted as a result of an election protest.
The right of the persons elected to compensation during their incumbency has always been recognized.
We cannot recall of any precedent wherein the contrary rule has been upheld. 19
In his concurring opinion in the same case, however, Justice Padilla equally stressed that, while the
general rule is that the ousted elective official is not obliged to reimburse the emoluments of office that
he had received before his ouster, he would be liable for damages in case he would be found
responsible for any unlawful or tortious acts in relation to his proclamation. We quote the pertinent
portion of that opinion for emphasis:
Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious acts which led
to and resulted in his proclamation as senator-elect, when in truth and in fact he was not so elected, he
would be answerable for damages. In that event the salary, fees and emoluments received by or paid
to him during his illegal incumbency would be a proper item of recoverable damage. 20
The criterion for a justifiable award of election protest expenses and salaries and emoluments, thus,
remains to be the existence of a pertinent breach of obligations arising from contracts or quasi-
contracts, tortious acts, crimes or a specific legal provision authorizing the money claim in the context
of election cases. Absent any of these, we could not even begin to contemplate liability for damages in
election cases, except insofar as attorney's fees are concerned, since the Civil Code enumerates the
specific instances when the same may be awarded by the court.
Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial
costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to
incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly
valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation and employer's liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of
litigation should be recovered. 21
Given the aforecited laws, and jurisprudence on the matter at issue, let us now look into the basis of
respondent COMELEC for awarding actual damages to private respondent in the form of
reimbursement for attorney's fees, actual expenses for xerox copies, and salary and other emoluments
that should have accrued to him from March, 1994 to April, 1995 had the RTC not issued an order for
execution pending appeal.
The First Division of the COMELEC ruled on private respondent's claim for actual or compensatory
damages in this wise:
. . . under the present legal setting, it is more difficult than in the past to secure an award of actual or
compensatory damages either against the protestant or the protestee because of the requirerments of
the law.
In the instant case, however, We are disposed to conclude that the election protest filed by the
protestant is clearly unfounded. As borne out by the results of the appreciation of ballots conducted by
this Commission, apparently the protest was filed in bad faith without sufficient cause or has been filed
for the sole purpose of molesting the protestee-appellant for which he incurred expenses. The
erroneous ruling of the Court which invalidated ballots which were clearly valid added more injury to
the protestee-appellant. This would have been bearable since he was able to perfect his appeal to this
Commission. The final blow, however, came when the Court ordered the execution of judgment
pending appeal which, from all indications, did not comply with the requirements of Section 2, Rule 39
of the Rules of Court. There was no good and special reason at all to justify the execution of judgment
pending appeal because the protestee's winning margin was 149 votes while that of the protestant —
after the Court declared him a winner — was only a margin of 154 votes. Clearly, the order of execution
of judgment pending appeal was issued with grave abuse of discretion.
For these reasons, protestee-appellant seeks to recover the following:
1. Actual damages representing attorney's fees for the new counsel who handled the Appeal and the
Petition for Certiorari before the Court of Appeals . . . P372,500.00
2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies at P1.50 . . .
P11,235.00
3. Actual expenses for xerox copying of ballots . . . P3,919.20
4. Actual damages for loss of salary and other emoluments since March 1994 as per attached
Certification issued by the Municipal Account of Kidapawan . . . P96,832.00 (up to October 1994 only)
Under Article 2208 of the New Civil Code attorney's fees and expenses of litigation can be recovered
(as actual damages) in the case of clearly unfounded civil action or proceeding. And, while the case
of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724) disallowed recovery of salaries and allowances (as
damages) from elected officials who were later ousted, under the theory that persons elected has (sic)
a right to compensation during their incumbency, the instant case is different. The protestee-appellant
was the one elected. He was ousted not by final judgment bur by an order of execution pending appeal
which was groundless and issued with grave abuse of discretion. Protestant-appellee occupied the
position in an illegal manner as a usurper and, not having been elected to the office, but merely installed
through a baseless court order, he certainly had no right to the salaries and emoluments of the office.
Actual damages in the form of reimbursement for attorney's fees (P372,500.00), actual expenses for
xerox copies (P15,154.00), unearned salary and other emoluments from March 1994 to April 1995 or
14 months at P12,104.00 a month (P169,456.00), totalled P557,110.00. To (sic) this amount, however,
P300,000.00 representing that portion of attorney's fees denominated as success fee' must be
deducted this being premised on a contingent event the happening of which was uncertain from the
beginning. Moral damages and exemplary damages claimed are, of course, disallowed not falling within
the purview of Section 259 of the Omnibus Election Code.
It goes without saying that if the protestant-appellee fails to pay the actual damages of P257,110.00,
the amount will be assessed, levied and collected from the bond of P500,000.00 which he put up before
the Court as
a condition for the issuance of the order of execution of judgment pending appeal. 22
Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995. The
COMELEC en banc, however, did not find any new matter substantial in nature, persuasive in character
or sufficiently provocative to compel reconsideration of said decision and accordingly affirmed in
toto the said decision. Hence, this petition raises, among others, the issue now solely remaining and in
need of final adjudication in view of the mootness of the other issues anent petitioner's right to the
contested office the term for which has already expired.
We have painstakingly gone over the records of this case and we can attribute to petitioner no breach
of contract or quasi-contract; or tortious act nor crime that may make him liable for actual damages.
Neither has private respondent been "able to point out to a specific provision of law authorizing a
money claim for election protest expenses against the losing party." 23
We find respondent COMELEC's reasoning in awarding the damages in question to be fatally flawed.
The COMELEC found the election protest filed by the petitioner to be clearly unfounded because its
own appreciation of the contested ballots yielded results contrary to those of the trial court. Assuming,
ex gratia argumentis, that this is a reasonable observation not without basis, it is nonetheless fallacious
to conclude a malicious intention on the part of petitioner to molest private respondent on the basis of
what respondent COMELEC perceived as an erroneous ruling of the trial court. In other words, the
actuations of the trial court, after the filing of a case before it, are its own, and any alleged error on its
part does not, in the absence of clear proof, make the suit "clearly unfounded" for which the
complainant ought to be penalized. Insofar as the award of protest expenses and attorney's fees are
concerned, therefore we find them to have been awarded by respondent COMELEC without basis, the
election protest not having been a clearly unfounded one under the aforementioned circumstances.
Respondent COMELEC also found the order granting execution of judgment pending appeal to be
defective because of alleged non-compliance with the requirement that there be a good and special
reason 24 to justify execution pending appeal. We, however, find that the trial court acted judiciously in
the exercise of its prerogatives under the law in issuing the order granting execution pending appeal.
First, it should be noted that the applicability of the provisions of the Rules of Court, relating to
execution pending appeal, has ceased to be debatable after we definitively ruled in Garcia vs. de
Jesus 25 that "Section 2, Rule 39 of the Rules of Court, which allows Regional Trial Courts to order
executions pending appeal upon good reasons stated in a special order, may be made to apply by
analogy or suppletorily to election contests decided by them." 26 It is not disputed that petitioner filed
a bond in the amount of P500,000.00 as required under the Rules of Court.
It is also now a settled rule that "as much recognition should be given to the value of the decision of a
judicial body as a basis for the right to assume office as that given by law to the proclamation made by
the Board of Canvassers." 27
. . . Why should the proclamation by the board of canvassers suffice as basis of the right to assume
office, subject to future contingencies attendant to a protest, and not the decision of a court of justice?
Indeed . . . the board of canvassers is composed of persons who are less technically prepared to make
an accurate appreciation of the ballots, apart from their being more apt to yield extraneous
considerations . . . the board must act summarily, practically raising (sic) against time, while, on the
other hand, the judge has the benefit of all the evidence the parties can offer and of admittedly better
technical preparation and background, apart from his being allowed ample time for conscientious study
and mature deliberation before rendering judgment . . . . 28
Without evaluating the merits of the trial court's actual appreciation of the ballots contested in the
election protest, we note on the face of its decision that the trial court relied on the findings of the
National Bureau of Investigation (NBI) handwriting experts which findings private respondent did not
even bother to rebut. We thus see no reason to disregard the presumption of regularity in the
performance of official duty on the part of the trial court judge. Capping this combination of
circumstances which impel the grant of immediate execution is the undeniable urgency involved in the
political situation in the Municipality of Kidapawan, North Cotabato. The appeal before the COMELEC
would undoubtedly cause the political vacuum in said municipality to persist, and so the trial court
reasonably perceived execution pending appeal to be warranted and justified. Anyway, the bond
posted by petitioner could cover any damages suffered by any aggrieved party. It is true that mere
posting of a bond is not enough reason to justify execution pending appeal, but the nexus of
circumstances aforechronicled considered together and in relation to one another, is the dominant
consideration for the execution pending appeal. 29
Finally, we deem the award of salaries and other emoluments to be improper and lacking legal sanction.
Respondent COMELEC ruled that inapplicable in the instant case is the ruling in Rodriguez
vs. Tan 30 because while in that case the official ousted was the one proclaimed by the COMELEC, in the
instant case, petitioner was proclaimed winner only by the trial court and assumed office by virtue of
an order granting execution pending appeal. Again, respondent COMELEC sweepingly concluded, in
justifying the award of damages, that since petitioner was adjudged the winner in the elections only by
the trial court and assumed the functions of the office on the strength merely of an order granting
execution pending appeal, the petitioner occupied the position in an illegal manner as a usurper.
We hold that petitioner was not a usurper because, while a usurper is one who undertakes to act
officially without any color of right, 31 the petitioner exercised the duties of an elective office under
color of election thereto. 32 It matters not that it was the trial court and not the COMELEC that declared
petitioner as the winner, because both, at different stages of the electoral process, have the power to
so proclaim winners in electoral contests. At the risk of sounding repetitive, if only to emphasize this
point, we must reiterate that the decision of a judicial body is no less a basis than the proclamation
made by the COMELEC-convened Board of Canvassers for a winning candidate's right to assume office,
for both are undisputedly legally sanctioned. We deem petitioner, therefore, to be a "de facto officer
who, in good faith, has had possession of the office and had discharged the duties pertaining
thereto" 33 and is thus "legally entitled to the emoluments of the office." 34
To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in election
cases of actual and compensatory damages in accordance with law. The victorious party in an election
case cannot be indemnified for expenses which he has incurred in an electoral contest in the absence
of a wrongful act or omission or breach of obligation clearly attributable to the losing party. Evidently,
if any damage had been suffered by private respondent due to the execution of judgment pending
appeal, that damage may be said to be equivalent to damnum absque injuria, which is, damage without
injury, or damage or injury inflicted without injustice, or loss or damage without violation of a legal
right, or a wrong done to a man for which the law provides no remedy. 35
WHEREFORE, the petition for certiorari is GRANTED. While we uphold the COMELEC decision dated May
5, 1995 that private respondent Joseph Evangelista is the winner in the election for mayor of the
Municipality of Kidapawan, North Cotabato, that portion of the decision is deemed moot and academic
because the term of office for mayor has long expired. That portion of the decision awarding actual
damages to private respondent Joseph Evangelista is hereby declared null and void for having been
issued in grave abuse of discretion and in excess of jurisdiction.
SO ORDERED.
Narvasa, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco and Panganiban, JJ., concur.
G.R. No. L-2051 May 21, 1948
BERNARDO TORRES, protestant-appellant,
vs.
MAMERTO S. RIBO and ALEJANDRO BALDERIAN, respondents-appellees.
Ramon Diokno, Mateo Canonoy, Olegario Lastrilla and Jose W. Diokno for appellant.
Antonio Montilla, Francisco Astilla and Francisco Pajao for appellees.
TUAZON, J.:
This is an appeal from the order of the Court of First Instance of Leyte dismissing a motion for a protest
for provincial governor on the alleged ground that the motion was filed out of time. The question turns
upon whether the period for filing the protest should be counted from the 22nd or from the 24th of
November, 1947. The court below used the first date as the starting point of computation.
The pertinent facts are these: The protestant, Bernardo Torres, and the defendants, Mamerto S. Ribo
and Alejandro Balderian, were opposing candidates for provincial governor of Leyte in the general
elections held on November 11, 1947. As Mamerto S. Ribo, who was provincial governor, and two
members of the provincial board were candidates, they are disqualified to form parts of the provincial
board of canvassers of which they were to be members under section 158 of the Revised Election Code.
Consequently, and in pursuance of Section 159, the Commission on Elections, in a telegram to the
provincial treasurer dated November 20 and received on November 21 in Tacloban, Leyte, appointed
the division superintendent of schools, the district engineer and the district health officer to replace
the disqualified members, with advice that they might assume office upon receipt of their
appointments. It so happened that the division superintendent of schools and the district engineer were
on that date on the west coast of the province and did not return to Tacloban until the 24th. In the
meantime, on November 22, F. Martinez, provincial treasurer, as chairman, Gregorio Abogado,
provincial fiscal, Vicente Tizon, assistant civil engineer in the district engineer's office, Evaristo Pascual,
chief clerk in the office of the division superintendent of schools, and W. Enage, acting district health
officer, canvassed the votes for provincial governor and other officers and proclaimed "Mamerto S.
Ribo as Governor-elect." Vicente Tizon and Evaristo Pascual sat as members "representing the district
engineer and the division superintendent of schools respectively.
On November 24, 1947, the provincial board of canvassers again met, the meeting this time being
attended by the provincial treasurer, the provincial fiscal, the district health officer, the division
superintendent of schools, the district engineer and the provincial auditor. In that meeting the board
made a new canvass of the votes and proclaimed Mamerto S. Ribo elected to the office of provincial
governor.
Were assistant civil engineer Vicente Tizon and chief clerk Evaristo Pascual lawful members of the
provincial board of canvassers? Judge Victoriano who first took cognizance of the case decided this
question on the negative. On a motion for reconsideration Judge Edmundo Piccio, another judge sitting
in Tacloban, reversed Judge Victoriano's order. Judge Piccio said, "Verily it would be absurd to suppose
that in this kind of official commitments, the District Engineer, the Division Superintendent of Schools
could not be represented by their Assistants who are in themselves competent and qualified persons. .
. it is unreasonable to sustain the arguments that the District Engineer and the Division Superintendent
of Schools could not delegate their prerogatives because as contended, this power or prerogatives
belongs exclusively to the Commission on Elections.
A statement in a Judge Piccio's decision needs correction although the point, in our view of the case, is
not material. It does not appear, and there is no pretense on the part of the protestee, that the division
superintendent of schools and the district engineer delegated their authority to Pascual and Tizon.
Upon whose instance or suggestion these two presumed to act in representation of their chiefs is nor
shown.
Section 158 of the Revised Election Code designates the officers who are to comprise the provincial
board of canvassers, and section 159 enumerates the officers to be appointed substitute members by
the Commission on Elections in case of the absence or incapacity of any of the members named in the
next preceding section. They are the division superintendent of schools, the district health officer, the
register of deeds, the clerk of the Court of First Instance, and the justice of the peace of the provincial
capital.
This express enumeration excludes other officers. Expresio unius est exclusio alterius. Not even the
Commission on Elections may lawfully appoint any of the person or officer outside of those mentioned.
Much less may any one other than this officers act as the member of the provincial board of canvasser
by delegation by a substitute members, by the indication of other members of the board, or of his own
volition. The appointment of a substitute member is personal and restricted and his powers must be
performed directly and in person by the appointee. To hold otherwise would be to authorize the
appointment, say, by the provincial treasurer, the provincial auditor, or the provincial fiscal of another
person to act in his stead and thus take away from the hands of the Commission on Elections the
authority to appoint under section 159.
An officer to whom a discretion is entrusted can not delegate it to another. The powers of the board of
canvassers are not purely ministerial, as the court below erroneously holds. The board excercise quasi
judicial functions, such as the function and duty to determined whether the papers transmitted to them
are genuine election returns signed by the proper officers. Thus, where what purports to be two or
more returns from the same municipality are received, the canvassing board must necessarily
determine from the face of the papers which one shall be regarded as the true and genuine return. (20
C. J., 201-202.).
In truth, there was presented to the board on the 22nd a matter which required the used of the
judgment. It appears from the minutes of the meeting of that date that the returns from four
municipalities were incomplete or entirely missing, so much so that in accordance with section 161 the
provincial treasurer notified the provincial fiscal of that fact. The minutes read:
The report of the provincial treasurer, dated November 21, 1947, to the Provincial fiscal, regarding
missing election returns in certain municipalities, that is not yet received by the provincial treasurer,
was read and considered by the Board. Also, certified statements by the municipal treasurers of the
municipalities concerned, showing the votes cast in their municipalities as shown in their (treasurers')
copies of the election returns for which no copies for the provincial treasurer were yet received, are
also presented. In order not to delay the canvassing, it was decided that such certified statements of
the respective municipal treasurers be taken at their face value in lieu of the missing election returns.
The municipalities affected are as follows:
1. Hinunangan — (a) No election returns for board members in Precinct No. 1. (b) No election return in
Precinct No. 11.
2. Leyte — (a) No election returns to precincts No. 6 (b) No election return for board members in
Precinct No. 11. (Certified copies of these election returns were received from the office of the
Municipal Treasurer in the course of the session of the Board of Canvassers.)
3. Pastrana — No election returns for governor and board members in Precinct No. 1. (The missing
returns were received from the municipality in the course of the session of the Board.)
4. Merida — No election return for board members in Precinct No. 10.
Nevertheless, the Provincial Treasurer informed the Board that efforts have been and are being exerted
by his office to obtain said missing election returns. As soon as they are received, authenticity of the
said municipal treasurers' statements will have to be considered from said returns.
On this vital question Tizon and Pascual voted. This was not a ministerial or mechanical task. That the
returns subsequently received tallied with the municipal treasurer's certificates does not cure the
mistake committed.
Quite apart from the intervention of Tizon and Pascual in the canvass, we are of the belief that the
canvass was premature and illegal. Section 162 of the Revised Election Code provides that "If it should
clearly appear that some requisite in form has been omitted in the statements, the board shall return
them by messenger or by another more expeditious means, to the corresponding board of canvassers
for correction." The board had before it not defective returns but papers or documents that were not
returns at all.
Tizon and Pascual eliminated, there were only three lawful members sitting on the board of canvassers
on November 22. Under section 159 of the Revised Penal Code the provincial board of canvassers is to
be composed of six members — the provincial governor, the two members of the provincial board, the
provincial treasurer, the provincial auditor and the provincial fiscal — subject to be replaced by the
officers named in the same section in case of their absence or disability. The Revised Election Code does
not state the number of the members of the canvassing board necessary to be present at the canvass.
One court has held that when one member absents himself from the session before completion of the
canvass the acts of the remaining members of the board in completing the canvass and certifying the
result were valid. (Ex parte Smith [Okl.] 154, page 521.) Some courts, however have held that the
canvassers cannot act unless all are present. (Chumasero vs. Patts, 2 Mont., 242 [writ of error dismissed
92 U. S., 358; 23 L. ed., 499].)
We do not decide whether the presence of the six members of the board of canvassers is essential. We
leave this question open. Whatever the law, it is our considered opinion that the presence of the three
members is not enough compliance with the law. If it were, two would be, and even one. There must
at be a quorum, which is a majority of all the members, or one half their number plus one. In the present
case, four constitute the quorum. The decisions just cited are very helpful on the other aspect of the
case. They served to emphasize the importance attached to the office of member of the board of
canvassers and the gravity and non-delegability of its functions and duties.
Upon the foregoing considerations, our judgment is that the meeting of November 22, 1947 of the
provincial board of canvassers and the proclamation in that meeting of the protestee were illegal and
of no effect. With this conclusion we refrain from discussing the other errors assigned by the appellant.
The appealed order will be reversed with costs against the appellees. It is so ordered.

The requirement of section 160 that "the provincial board of canvassers shall meet as soon as possible Paras, Feria, Perfecto and Bengzon, JJ., concur.
within fifteen days next following the day of election" and that "as soon as all the statements are before
it but not later than fifteen days next following the date of the election, the provincial board of
canvassers shall proceed to make the canvass of all the votes cast in the province for national, provincial
and city candidates, etc." is merely directory (20 C. J., 199) and does not legalize the making and
completing of the canvass before all the returns are in.

The protestee maintains that at any rate Pascual and Tizon were de facto officers. This contention is
without any foundation in law. An officer de facto is one who has the reputation of being the officer he
assumes to be, and yet is not a good officer in point of law. He must have acted as an officer for such a
length of time, under color of title and under such circumstances of reputation or acquiescence by the
public and public authorities, as to afford a presumption of appointment or election, and induce people,
without injury, and relying on the supposition that he is the officer he assumes to be, to submit to or
invoke his action. (46 C. J., 1053.)

Tizon and Pascual did not possess any of these conditions. They acted without any appointment,
commission or any color of title to the office. There was no acquiescence, public or private, in their
discharge of the position. In fact the very person most greatly affected by their assumption of the office,
Bernardo Torres, was not notified and was not unaware of it.
G.R. No. 123989. January 26, 1998]
ATTY. DAVID B. CORPUZ, petitioner, vs. COURT OF APPEALS, and MOVIE AND TELEVISION REVIEW
ANDCLASSIFICATION BOARD, respondents.
DECISION
DAVIDE, JR., J.:
Petitioner Atty. David Corpuz (hereafter CORPUZ) asks us to set aside the 13 October 1995 decision of
the Court of Appeals in CA-G.R. SP-No. 37694[1] which reversed Resolution No. 93-5964 of the Civil
Service Commission (CSC),[2] the latter declaring that petitioners separation from the service as
Attorney V in the Movie Television Review Board (MTRCB) was not in order and directed that he be
automatically restored to his position.
The pleadings of the parties, the decision of the Court of Appeals and the Resolution of the CSC disclose
the following facts:
On 18 July 1986, CORPUZ was appointed as the MTRCBs legal Counsel -- Prosecutor and Investigation
Services (Supervising Legal Staff Officer).[3]The appointment was approved by Asst. Regional Director
Benita Santos of the CSC-National Capital Region. Subsequently, CORPUZ position was designated
Attorney V under the Salary Standardization Law.
As MTRCB Legal Counsel, CORPUZ duties included attendance in Board meetings pursuant to then
Chairman Moratos memorandum of 11 September 1987.[4]
Sometime in August 1991, the MTRCB passed MTRCB Resolution No. 8-1-91[5] entitled An Act To Declare
The Appointments Of The Administrative And Subordinate Employees Of This Board As Null And
Void. This undated resolution noted that the past and present Chairmen of the MTRCB had failed to
submit for approval the appointments of administrative and subordinate employees to the MTRCB
before forwarding them to the CSC, in violation of Section 5 of P.D. No. 876-A, and later, P.D. No.
1986.[6] It thus declared:
FOR ALL OF THE FOREGOING, this Board, in Session Assembled, hereby declare[s] that ALL the
appointments of the present administrative and subordinate employees of this Board suffers [sic] from
illegality and therefore [are] considered invalid and of no value and effect ab initio.
IT IS THEREFORE RESOLVED, AS IT IS HEREBY RESOLVED BY THIS BOARD, that the Chairman recommend
to this Board, the appointment of all or some of the present administrative and subordinate employees
of this Board, or new ones, at his initiative, discretion and preference, including the category of the
position for which the appointees [are] recommended, within a period of ONE MONTH from the
approval of this Resolution;
IT IS FURTHER RESOLVED, that in the interregnum, and in order not to disrupt the workings and
functions of this Board while this body is awaiting for [sic] the recommendation of the appointments of
the old and or new appointees, the present administrative and subordinate employees shall hold on
[to] their position[s] in an [sic] holdover capacity.
As certified by MTRCB Secretary Vicente G. Sales,[7] Resolution No. 8-1-91 was filed in his office on 1
August 1991, while Resolution No. 10-2-91, a mere reiteration of Resolution No. 8-1-91, was approved
by the MTRCB en banc on 9 October 1991. No copy of Resolution No. 10-2-91, however, was found in
the records.
CORPUZ was unaware of the promulgation of Resolution No. 8-1-91 as he was then on leave. The
Resolution was likewise kept secret and it was only on 12 March 1993 that an announcement [8] of its
contents was posted by an Ad Hoc Committee on the MTRCB bulletin board. This announcement
invited the submission of any information concerning the appointments involved therein to the
Committee. It appears, however, that nothing was immediately done to implement Resolution No. 8-
1-91.
On 14 July 1992, Henrietta S. Mendez was appointed MTRCB Chairman. Thereafter, new members of
the Board were likewise appointed with Mendez assuming office in August 1992.
At the MTRCB meeting of 19 January 1993, Mendez was informed about Resolution No. 8-1-91. An Ad
Hoc Committee composed of MTRCB members was then constituted to look into the appointments
extended by former Chairman Morato, as well as the qualifications of the appointees. The Committee
then posted on the MTRCB bulletin board the 12 March 1993 announcement mentioned above.
Thereafter, the Committee resolved to recommend to the MTRCB the approval of the appointments,
except that of CORPUZ and seven others.
In a Memorandum[9] dated 28 June 1993, Mendez informed CORPUZ that at the MTRCB regular meeting
of 25 June 1993, his appointment was disapproved effective 30 June 1993.None of the parties attached
to their pleadings a copy of the MTRCB Resolution disapproving the appointment.
On 27 July 1993, CORPUZ and one Larry Rigor filed a complaint with the CSC requesting a formal
investigation and hearing. In her comment to the complaint, Mendez stated that she discovered that
the appointments extended by Morato were not submitted to the MTRCB for approval pursuant to
Section 5(c) of P.D. No. 1986; hence to cure the defect, she submitted the appointments to the MTRCB.
On 31 August 1993, the CSC promulgated Resolution No. 93-3509 granting the MTRCB authority to fill
up positions vacated in the agency due to appointments which were not submitted to the MTRCB for
approval.[10]
However, in Resolution No. 93-5964[11] dated 23 December 1993, the CSC ruled in favor of CORPUZ, as
follows:
It must be appreciated that the appointment of Atty. Corpuz was approved by the Commission because
it was signed by Mr. Manuel Morato, then Chairman of [the] MTRCB and the duly authorized signatory
of MTRCB appointments. All the appointments signed by Mr. Morato in his capacity as MTRCB
Chairman are presumed to have been made after complying with all the legal requirements including
the Board approval, whether express or implied.
The appointment of Atty. Corpuz, if defective, could have been the subject of a direct action for
revocation or recall which may be brought to the Commission within a reasonable period of time after
its approval Since no such action was filed with the Commission, we can safely state that Corpuz had
already acquired security of tenure in the said position. Hence, the Commission can not allow the
current Boards disapproval of the said appointment to produce any effect. Atty. Corpuz can no longer
be separated from the service except for cause and after observing the requirements of due process.
WHEREFORE, foregoing premises considered, the Commission hereby resolves to rule that the
separation of Mr. David Corpuz from the service is not in order. Accordingly, he is automatically
restored to his position of Atty. V with payment of back salaries.
The MTRCBs motion for reconsideration was denied by the CSC in Resolution No. 94-2551[12] dated 20
June 1994.
In the meantime, specifically on 22 August 1994, CORPUZ became a permanent employee of the
Ombudsman.[13]
The MTRCB filed with us a special civil action for certiorari which we referred to the Court of Appeals in
view of Republic Act No. 7902.[14] The Court of Appeals then docketed the case as CA-G.R. SP No. 37694.
In its decision, the Court of Appeals declared null and void Resolution No. 93-5964 of the CSC, ruling
that since the appointment of CORPUZ was not approved by the MTRCB, the appointment was invalid
and he could not invoke security of tenure. In support of its ruling, the Court of Appeals held:
Presidential Decree No. 1986, the law creating the Movie and Television Review and Classification
Board, specifically provides as follows:
Section 16. Organization Patterns; Personnel. -- The Board shall determine its organizational structure
and staffing pattern. It shall have the power to suspend or dismiss for cause any employee and/or
approve or disapprove the appointment, transfer or detail of employees. It shall appoint the Secretary
of the Board who shall be the official custodian of the records of the meetings of the Board and who
shall perform such other duties and functions as directed by the Board. (Underscoring supplied)
The record shows that the appointment of respondent Atty. David Corpuz was not approved by the
Board, as mandated by Presidential Decree No. 1986, Section 16.
The Supreme Court, in a similar case has reiterated the importance of complying with legal
requirements for a valid appointment. In Tomali vs. Civil Service Commission (238 SCRA 572), it held:
Compliance with the legal requirements for an appointment to a civil service position is essential in
order to make it fully effective (Favis vs. Rupisan, 17 SCRA 190, cited in Mitra vs. Subido, 21 SCRA
127). Without the favorable certification or approval of the Commission, in cases when such an
approval is required, no title to the office can yet be deemed to be permanent; vested in favor of the
appointee, and the appointment can still be recalled or withdrawn by the appointing authority
(Grospe vs. Secretary of Public Works and Communication, 105 Phil. 129; Villanueva vs. Balallo, 9 SCRA
407; Suarez vs. Commission on Elections, 20 SCRA 797). Until an appointment has become a completed
act, it would likewise be precipitate to invoke the rule of security of tenure (See Aquino vs. Civil Service
Commission, 208 SCRA 240; Mitra vs. Subido, 21 SCRA 797).
It appearing that respondent Atty. Corpuz appointment was not approved by the Board, the same
cannot be considered as [a] valid appointment. As such, he cannot invoke security of tenure, even if he
has rendered service for a number of years.
Neither would the silence or the failure of the Board to recall the private respondents appointment
constitute as a [sic] consent or confirmation. In the aforecited case, the Supreme Court restated the
existing jurisprudence on the matter, thus:
The tolerance, acquiescence or mistake of the proper officials, resulting in the non-observance of the
pertinent rules on the matter does not render the legal requirement, on the necessity of the approval
of the Commissioner on Civil Service of appointments, ineffective and unenforceable. The employee,
whose appointment was not approved, may only be considered as a de facto officer. (Tomali vs. Civil
Service Commission, supra citing Favis vs. Rupisan, 17 SCRA 190, 191)
Thus, We find merit in petitioners contention that respondent Atty. David Corpuz did not acquire a
vested right nor does he presently enjoy a [sic] security of tenure to the subject position in the MTRCB
for failure to comply with the legal requirements needed for a valid appointment. Hence, he cannot be
reinstated. Not being a permanent employee of the Movie and Television Review and Classification
Board, the tenure of respondent Atty. Corpuz ceased when he was not properly appointed under
present law.
His motion for reconsideration having been denied in the Resolution[15] of 13 February 1996, CORPUZ
filed the instant petition under Rule 45 of the Rules of Court and asked us to reverse the challenged
decision of the Court of Appeals on the sole ground that:
THE COURT OF APPEALS ERRED IN RULING THAT THE APPOINTMENT OF PETITIONER ATTY. DAVID B.
CORPUZ DID NOT HAVE THE APPROVAL OF THE MTRCB BOARD WHICH IF NOT CORRECTED, IS
TANTAMOUNT TO A VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO SECURITY OF TENURE.
In his Memorandum, however, CORPUZ explicitly declared that he is no longer seeking reinstatement
with respondent MTRCB but for the continuity of his government service from the time he was illegally
dismissed on 30 June 1993 up to the time he was permanently employed with the Office of the
Ombudsman on 22 August 1994 plus back salaries and other benefits due him if not for the illegal
dismissal.[16]
Pursuant to Section 2 of P.D. No. 1986, the MTRCB is composed of a Chairman, a Vice-Chairman and
thirty (30) members, all appointed by the President of the Philippines. Section 5 thereof enumerates
the following functions, powers and duties of the Chairman as the Chief Executive Officer of the MTRCB,
to wit:
(a) Execute, implement and enforce the decisions, orders, awards, rules and regulations issued by the
BOARD;
(b) Direct and supervise the operations and the internal affairs of the BOARD;
(c) Establish the internal organization and administrative procedures of the BOARD, and recommend to
the BOARD the appointment of the necessary administrative and subordinate personnel; and
(d) Exercise such other powers and functions and perform such duties as are not specifically lodged in
the BOARD.
On the other hand, Section 16 thereof, quoted in the challenged decision of the Court of Appeals, vests
upon the Board itself the power to, inter alia, approve or disapprove the appointments of its personnel.
It is thus clear that there are two stages in the process of appointing MTRCB personnel, other than its
Secretary, namely: (a) recommendation by the Chairman which is accomplished by the signing of the
appointment paper, which is among his powers under Section 5(d) above; and (b) approval or
disapproval by the MTRCB of the appointment. As to the Secretary, it is the MTRCB itself that is
empowered to appoint said official pursuant to Section 16.

It is long settled in the law of public offices and officers that where the power of appointment is
absolute, and the appointee has been determined upon, no further consent or approval is necessary,
and the formal evidence of the appointment, the commission, may issue at once. Where, however, the
assent or confirmation of some other officer or body is required, the commission can issue or the
appointment may be complete only when such assent or confirmation is obtained. In either case, the
appointment becomes complete when the last act required of the appointing power is
performed.[17] Until the process is completed, the appointee can claim no vested right in the office nor
invoke security of tenure. Hence, in the case of CORPUZ, since the last act required for the completion
of his appointment, viz., approval by the MTRCB itself, was not obtained, as a matter of fact, the MTRCB
ultimately disapproved it, his appointment ceased to have effect, if at all, and his services were properly
terminated. This Court so declared in Favis v. Rupisan[18] where the appointment involved was not
approved by the Civil Service Commission pursuant to Section 16(h) of R.A. No. 2260 and Section 2(a)
of Rule VI of the Civil Service Rules implementing said law; Taboy v. Court of Appeals [19] and Provincial
Board of Cebu v. Presiding Judge of Cebu Court of First Instance[20] where the appointments of subject
employees were disapproved by the Provincial Boards pursuant to the powers granted them; in Carillo
v. Court of Appeals[21] where the required consent of the municipal council in the appointment of the
chief of police was not obtained; and in Tomali v. Civil Service Commission,[22] which the Court of
Appeals relied upon, where the required submission to and approval by the Civil Service Commission
were not made as required by Section 9(h) of P.D. No. 807 and Section 11, Rule V of the Omnibus Rules
Implementing Book V of Executive Order No. 292, otherwise known as the Administrative Code of
1987. In the latter, this Court held that compliance with the legal requirements for an appointment to
a civil service position is essential to make it fully effective. That the employee involved had, in fact,
assumed office and performed the functions and duties thereof is of no moment, for it matters not that
the appointee had served for several years. Those years of service cannot substitute for the want of
consent of another body required by law to complete the appointment. The tolerance, acquiescence or
mistake of the proper officials resulting in non-observance of the requirements of law or rules to
complete the appointment does not render the requirements ineffective and unenforceable.[23]

A public official or employee who assumed office under an incomplete appointment is merely a de
facto officer for the duration of his occupancy of the office for the reason that he assumed office under
color of a known appointment which is void by reason of some defect or irregularity in its
exercise.[24] Undeniably, under the facts here, CORPUZ was such a de factoofficer.

WHEREFORE, the instant petition is DENIED and the assailed decision of 13 October 1995 of the Court
of Appeals in CA-G.R. SP-No.37694 is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Bellosillo, Vitug and Kapunan, JJ., concur.

G.R. NO. L-69137 August 5, 1986
FELIMON LUEGO, petitioner-appellant,
vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.
Jose Batiquin for petitioner-appellant.
Fausto F. Tugade for private respondent-appellee.
CRUZ, J.:
Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the
facts of this case may be briefly narrated as follows:
The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor
Florentino Solon on February 18, 1983. 1 The appointment was described as permanent" but the Civil
Service Commission approved it as "temporary," subject to the final action taken in the protest filed by
the private respondent and another employee, and provided "there (was) no pending administrative
case against the appointee, no pending protest against the appointment nor any decision by competent
authority that will adversely affect the approval of the appointment." 2 On March 22, 1984, after
protracted hearings the legality of which does not have to be decided here, the Civil Service Commission
found the private respondent better qualified than the petitioner for the contested position and,
accordingly, directed "that Felicula Tuozo be appointed to the position of Administrative Officer 11 in
the Administrative Division, Cebu City, in place of Felimon Luego whose appointment as Administrative
Officer II is hereby revoked."3 The private respondent was so appointed on June 28, 1984, by the new
mayor, Mayor Ronald Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now
before us to question that order and the private respondent's title.
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent
appointment on the ground that another person is better qualified than the appointee and, on the basis
of this finding, order his replacement by the latter?
The Solicitor General, rather than face the question squarely, says the petitioner could be validly
replaced in the instant case because his appointment was temporary and therefore could be withdrawn
at will, with or without cause. Having accepted such an appointment, it is argued, the petitioner waived
his security of tenure and consequently ran the risk of an abrupt separation from his office without
violation of the Constitution.5
While the principle is correct, and we have applied it many times,6 it is not correctly applied in this case.
The argument begs the question. The appointment of the petitioner was not temporary but permanent
and was therefore protected by Constitution. The appointing authority indicated that it was permanent,
as he had the right to do so, and it was not for the respondent Civil Service Commission to reverse him
and call it temporary.
The stamping of the words "APPROVED as TEMPORARY" did not change the character of the
appointment, which was clearly described as "Permanent" in the space provided for in Civil Service
Form No. 33, dated February 18, 1983. 7 What was temporary was the approval of the appointment,
not the appointment it sell And what made the approval temporary was the fact that it was made to
depend on the condition specified therein and on the verification of the qualifications of the appointee
to the position.
The Civil Service Commission is not empowered to determine the kind or nature of the appointment
extended by the appointing officer, its authority being limited to approving or reviewing the
appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified
and authorizing the other legal requirements are satisfied, the Commission has no choice but to attest
to the appointment in accordance with the Civil Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
It is well settled that the determination of the kind of appointment to be extended lies in the official
vested by law with the appointing power and not the Civil Service Commission. The Commissioner of
Civil Service is not empowered to determine the kind or nature of the appointment extended by the
appointing officer. When the appointee is qualified, as in this case, the Commissioner of Civil Service
has no choice but to attest to the appointment. Under the Civil Service Law, Presidential Decree No.
807, the Commissioner is not authorized to curtail the discretion of the appointing official on the nature
or kind of the appointment to be extended. 8
Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee
is qualified for the position to which he has been named. As we have repeatedly held, such attestation
is required of the Commissioner of Civil Service merely as a check to assure compliance with Civil Service
Laws.9
Appointment is an essentially discretionary power and must be performed by the officer in which it is
vested according to his best lights, the only condition being that the appointee should possess the
qualifications required by law. If he does, then the appointment cannot be faulted on the ground that
there are others better qualified who should have been preferred. This is a political question involving
considerations of wisdom which only the appointing authority can decide.
It is different where the Constitution or the law subjects the appointment to the approval of another
officer or body, like the Commission on Appointments under 1935 Constitution. 10 Appointments made
by the President of the Philippines had to be confirmed by that body and could not be issued or were
invalidated without such confirmation. In fact, confirmation by the Commission on Appointments was
then considered part of the appointing process, which was held complete only after such
confirmation. 11
Moreover, the Commission on Appointments could review the wisdom of the appointment and had the
power to refuse to concur with it even if the President's choice possessed all the qualifications
prescribed by law. No similar arrangement is provided for in the Civil Service Decree. On the contrary,
the Civil Service Commission is limited only to the non-discretionary authority of determining whether
or not the person appointed meets all the required conditions laid down by the law.
It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil
Service Decree because it says the Commission has the power to "approve" and "disapprove"
appointments. Thus, it is provided therein that the Commission shag have inter alia the power to:
9(h) Approve all appointments, whether original or promotional to positions in the civil service, except
those presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen,
and jailguards, and disapprove those where the appointees do not possess appropriate eligibility or
required qualifications. (emphasis supplied)

However, a full reading of the provision, especially of the underscored parts, will make it clear that all
the Commission is actually allowed to do is check whether or not the appointee possesses the
appropriate civil service eligibility or the required qualifications. If he does, his appointment is
approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the
Commission when it acts on--or as the Decree says, "approves" or "disapproves" an appointment made
by the proper authorities.

Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private
respondent were qualified for the position in controversy. 12 That recognition alone rendered it functus
officio in the case and prevented it from acting further thereon except to affirm the validity of the
petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply
because it believed that the private respondent was better qualified for that would have constituted
an encroachment on the discretion vested solely in the city mayor.

In preferring the private respondent to the petitioner, the Commission was probably applying its own
Rule V, Section 9, of Civil Service Rules on Personnel Actions and Policies, which provides that
"whenever there are two or more employees who are next-in-rank, preference shall be given to the
employee who is most competent and qualified and who has the appropriate civil service eligibility."
This rule is inapplicable, however, because neither of the claimants is next in rank. Moreover, the next-
in-rank rule is not absolute as the Civil Service Decree allows vacancies to be filled by transfer of present
employees, reinstatement, re-employment, or appointment of outsiders who have the appropriate
eligibility. 13

There are apparently no political overtones in this case, which looks to be an honest contention
between two public functionaries who each sincerely claims to be entitled to the position in dispute.
This is gratifying for politics should never be permitted to interfere in the apolitical organization of the
Civil Service, which is supposed to serve all the people regardless of partisan considerations. This
political detachment will be impaired if the security of tenure clause in the Constitution is emasculated
and appointments in the Civil Service are revoked and changed at will to suit the motivations and even
the fancies of whatever party may be in power.

WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is
set aside, and the petitioner is hereby declared to be entitled to the office in dispute by virtue of his
permanent appointment thereto dated February 18, 1983. No costs.

SO ORDERED.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ.,
concur.
G.R. No. 71562 October 28, 1991
JOSE P. LAUREL V, in his official capacity as Provincial Governor of Batangas, petitioner,
vs.
CIVIL SERVICE COMMISSION and LORENZO SANGALANG, respondents.
Provincial Attorney for respondent.
RESOLUTION
DAVIDE, JR., J.:
Is the position of Provincial Administrator primarily confidential?
Does the rule on nepotism apply to designation?
May a private citizen who does not claim any better right to a position file a verified complaint with the
Civil Service Commission to denounce a violation by an appointing authority of the Civil Service Law and
rules?
These are the issues raised in this petition.
The antecedent facts are not disputed.
Petitioner, the duly elected Governor of the Province of Batangas, upon assuming office on 3 March
1980, appointed his brother, Benjamin Laurel, as Senior Executive Assistant in the Office of the Governor,
a non-career service position which belongs to the personal and confidential staff of an elective official. 1
On 31 December 1980, the position of Provincial Administrator of Batangas became vacant due to the
resignation of Mr. Felimon C. Salcedo III. Allegedly for lack of qualified applicants and so as not to
prejudice the operation of the Provincial Government, petitioner designated his brother, Benjamin
Laurel, as Acting Provincial Administrator effective 2 January 1981 and to continue until the
appointment of a regular Provincial Administrator, unless the designation is earlier revoked. 2
On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil Security Officer, a
position which the Civil Service Commission classifies as "primarily confidential" pursuant to P.D. No.
868. 3
On 10 January 1983, private respondent Sangalang wrote a letter to the Civil Service Commission 4 to
bring to its attention the "appointment" of Benjamin Laurel as Provincial Administrator of Batangas by
the Governor, his brother. He alleges therein that: (1) the position in question is a career position, (2)
the appointment violates civil service rules, and (3) since the Governor authorized said appointee to
receive representation allowance, he violated the Anti-Graft and Corrupt Practices Act. He then asks
that the matter be investigated.
In his letter to the Chairman of the Civil Service Commission dated 18 January 1983, 5 Jose A. Oliveros,
Acting Provincial Attorney of Batangas, for and in behalf of herein petitioner, asserts that the latter did
not violate the provision prohibiting nepotism under Section 49 of P.D. No. 807 because, with respect to
the positions of Senior Executive Assistant and Civil Security Officer, both are primarily confidential in
nature; and, with respect to the position of Provincial Administrator:
. . . what is prohibited under Section 49 of P.D. 807 is the appointment of a relative to a career Civil
Serviceposition, like that of a provincial administrator. Governor Laurel did not appoint his brother,
Benjamin, as Provincial Administrator. He merely designated him "Acting Provincial Administrator." And
"appointment" and "designation" are two entirely different things. Appointment implies original
establishment of official relation. Designation is the imposition of new or additional duties upon an
officer to be performed by him in a special manner. It presupposes a previous appointment of the officer
in whom the new or additional duties are imposed.
Appointment is generally permanent, hence the officer appointed cannot be removed except for cause;
designation is merely temporary and the new or additional powers may be withdrawn with or without
cause.
Benjamin C. Laurel had already been appointed Senior Executive Assistant in the Office of the Governor
when Governor Laurel designated him Acting Provincial Administrator.
It is further alleged that there was no violation of the Anti-Graft and Corrupt Practices Act because:
As Acting Provincial Administrator, Benjamin is entitled under Office of the President Memorandum-
Circular No. 437, series of 1971, to a monthly representation allowance of P350.00. And said allowance
is "strictly on reimbursement basis." 6
On 12 July 1983, the Civil Service Commission handed down the aforesaid Resolution No. 83-358
7 which, inter alia, revokes the designation of Benjamin as Acting Provincial Administrator on the ground
that it is "nepotic", or in violation of Section 49, P.D. No. 807 on nepotism. The relevant portion of said
section reads as follows:
SECTION 49. Nepotism. — (a) 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 affinity.
(b) The following are exempted from the operation of the rules on nepotism: (1) persons employed in a
confidential capacity, (2) teachers, (3) physicians, and (4) 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.
xxx xxx xxx
Although what was extended to Benjamin was merely a designation and not an appointment, the Civil
Service Commission ruled that "the prohibitive mantle on nepotism would include designation, because
what cannot be done directly cannot be done indirectly." It further held that Section 24(f) of Republic
Act No. 2260 provides that no person appointed to a position in the non-competitive service (now non-
career) shall perform the duties properly belonging to any position in the competitive service (now career
service). The petitioner, therefore, could not legally and validly designate Benjamin, who successively
occupied the non-career positions of Senior Executive Assistant and Civil Security Officer, to the position
of Provincial Administrator, a career position under Section 4 of R.A. No. 5185.
Petitioner's motion to reconsider said Resolution, 8 based on the claim that the questioned position is
primarily confidential in nature, having been denied in Resolution No. 85-271 of 3 July 1985 9 wherein
the respondent Civil Service Commission maintains that said position is not primarily-confidential in
nature since it neither belongs to the personal staff of the Governor nor are the duties thereof
confidential in nature considering that its principal functions involve general planning, directive and
control of administrative and personnel service in the Provincial Office, petitioner filed the instant
petition invoking the following grounds:
A. Respondent Commission has committed a (sic) grave abuse of discretion amounting to lack or excess
of jurisdiction when it held that the position of provincial administrator is not a primarily-confidential
position because said ruling is diametrically opposed to, and in utter disregard of rulings of this
Honorable Court as to what is a primarily-confidential position under Article XII-B, Sec. 2 of the
Constitution.
B. Respondent Commission gravely abused its discretion and acted without jurisdiction when it
arrogated unto itself the power to review a designation made by petitioner by virtue of the powers in
him vested under Section 2077 of the Revised Administrative Code.
C. Respondent Commission exceeded its jurisdiction when it gave due course to the complaint of private
respondent and thereafter promulgated the resolutions under question in this petition.
D. There is no appeal, nor any other plain, speedy and adequate remedy in the ordinary course of law
available to petitioner to have the questioned resolutions of respondent Commission reviewed and
thereafter nullified, revoked and set aside, other than this recourse to a petition for certiorari under Rule
65 of the Rules of Court.
In the Comment filed for the respondent Commission on 7 October 1985, the Solicitor General sustains
the challenged resolutions and contends that the position of Provincial Administrator is intended to be
part of the career system and since it requires a specific civil service eligibility, it belongs to the career
service under Section 5(1) of P.D. No. 807 and has not been declared primarily confidential by the
President pursuant to Section 1 of P.D. No. 868; that the Commission has the authority to review,
disapprove, and set aside even mere designations, as distinguished from appointments, for Section 2 of
P.D. No. 807 vests in it the power to enforce the laws and rules governing the selection, utilization,
training and discipline of civil servants; and that it can act on Sangalang's complaint pursuant to Section
37 of P.D. No. 807, for what he filed was not an action for quo warranto, but an administrative complaint
to correct a violation of the Civil Service law and rules which involved public service and the public
interest. Per Benitez vs. Paredes, 10 reiterated in Tañada vs.
11
Tuvera, where the question is one of public right, the people are regarded as the real parties in
interest, and the relator at whose instigation the proceedings are instituted need only show that he is a
citizen and as such interested in the execution of the laws.
On 11 December 1985, petitioner filed his Reply to the Comment insisting therein that the duties,
functions and responsibilities of the Provincial Administrator render said position primarily confidential
in nature; the requirement of a specific service eligibility and absence of a presidential declaration that
the position is primarily confidential do not place the said position in the career service; the position of
Provincial Administrator is in the non-career service; and that the Benitez vs. Paredes and Tañada vs.
Tuvera cases are not applicable in this case. Petitioner insists that the controlling doctrines are those
enunciated in Salazar vs. Mathay, 12 where this Court held that there are two instances when a position
may be considered primarily confidential, to wit: (a) when the President, upon recommendation of the
Commissioner of Civil Service (now Civil Service Commission) has declared a position to be primarily
confidential; and (2) in the absence of such declaration, when by the very nature of the functions of the
office, there exists close intimacy between the appointee and the appointing power which insures
freedom of intercourse without embarrassment or freedom from misgiving or betrayals of personal trust
or confidential matters of state and Piñero vs. Hechanova, 13 where this Court ruled that at least, since
the enactment of the 1959 Civil Service Act (R.A. No. 2260), it is the nature of the position that finally
determines whether a position is primarily confidential, policy determining, or highly technical and that
executive pronouncements can be no more than initial determinations that are not conclusive in case of
conflict, which must be so, or else "it would then lie within the discretion of the Chief Executive to deny
to any officer, by executive fiat, the protection of section 4, Article XII of the Constitution."
In his Rejoinder filed on 16 December 1986, the Solicitor General states that the rulings in
the Salazar and Piñerocases have been modified and superseded by Section 6 of P.D. No. 807, and by
the third paragraph of Section 1 of P.D. No. 868, which provides:
Any provision of law authorizing any official, other than the President, to declare positions policy-
determining, primarily confidential or highly technical which are exempt from the Civil Service Law and
rules is hereby repealed, and only the President may declare a position-determining, highly technical or
primarily confidential, upon recommendation of the Civil Service Commission, the Budget Commission
and the Presidential Reorganization Commission.
The Solicitor General further asseverates that the Commissions' giving due course to the complaint of
Sangalang is manifestly valid and legal for it is also in accordance with the declared policies of the State
provided for in Section 2 of P.D. No. 807.
In the Resolution of 9 February 1987, this Court gave due course to the petition and required the parties
to submit simultaneous memoranda.
We shall take up the issues in the order they are presented above.
1. The first issue becomes important because if the questioned position is primarily confidential, Section
49 of P.D. No. 807 on nepotism would not apply in the instant case. Interestingly, however, petitioner
did not raise it in the letter to the Chairman of the Civil Service Commission dated 18 January 1983. 14
On the contrary, he submits, or otherwise admits therein, that said position is not primarily confidential
for it belongs to the career service. He even emphasized this fact with an air of absolute certainty, thus:
At this juncture, may I emphasize that what is prohibited under Sec. 49 of P.D. 807 is the appointment
of a relative to a career Civil Service position, LIKE THAT OF PROVINCIAL ADMINISTRATOR . . .
(capitalization supplied for emphasis).
The sole ground invoked by him for exemption from the rule on nepotism is, as above indicated: the
rule does not apply to designation — only to appointment. He changed his mind only after the public
respondent, in its Resolution No. 83-358, ruled that the "prohibitive mantle on nepotism would include
designation, because what cannot be done directly cannot be done indirectly" and, more specifically,
only when he filed his motion to reconsider said resolution. Strictly speaking, estoppel has bound
petitioner to his prior admission. Per Article 1431 of the Civil Code, through estoppel an admission or
representation is rendered conclusive upon the person making it, and cannot be denied or disproved
as against the person relying thereon. 15
But even if estoppel were not to operate against him, or regardless thereof, his claim that the position
of Provincial Administrator is primarily confidential, is without merit.
As correctly maintained by the public respondent and the Solicitor General, the position of Provincial
Administrator is embraced within the Career Service under Section 5 of P.D. No. 807 as evidenced by
the qualifications prescribed for it in the Manual of Position Descriptions, 16 to wit:
Education : Bachelor's degree preferably in Law/Public or Business Administration.
Experience : Six years of progressively responsible experience in planning, directing and administration
of provincial government operations. Experience in private agencies considered are those that have
been more or less familiar level of administrative proficiency.
Eligibility : RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First
Grade/Supervisor).
It may be added that the definition of its functions and its distinguishing characteristics as laid down in
the Manual, thus:
xxx xxx xxx
2. DEFINITION:
Under the direction of the Provincial Governor, responsible for the overall coordination of the activities
of the various national and local agencies in the province; and general planning, direction and control
of the personnel functions and the administrative services of the Governor's Office.
3. DISTINGUISHING CHARACTERISTICS:
This is the class for top professional level management, administrative and organizational work in the
operation of provincial government with highly complex, involved relationships with considerable
delegation of authority and responsibility and a high degree of public contact.
render indisputable the above conclusion that the subject position is in the career service which, per
Section 5 of P.D. No. 807, is characterized by (a) entrance based on merit and fitness to be determined
as far as practicable by competitive examinations, or based on highly technical qualifications, (b)
opportunity for advancement to higher career positions, and (c) security of tenure. More specifically, it
is an open career position, for appointment to it requires prior qualification in an appropriate
examination. 17 It falls within the second major level of positions in the career service, per Section 7 of
P.D. No. 807, which reads:
Sec. 7. Classes of Positions in the Career Service. — (a) Classes of positions in the career service
appointment to which requires examinations shall be grouped into three major levels as follows:
xxx xxx xxx
(2) The second level shall include professional, technical, and scientific positions which involve
professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least
four years of college work up to Division Chief level; . . .
In Piñero, et al. vs. Hechanova, et al., 18 this Court had the occasion to rule that:
It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260), it is the nature of
the position which finally determines whether a position is primarily confidential, policy determining or
highly technical. Executive pronouncements can be no more than initial determinations that are not
conclusive in case of conflict. And it must be so or else it would then lie within the discretion of the
Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII 19 of the
Constitution.
This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which pertinently reads:
. . . and only the President may declare a position policy-determining, highly technical or primarily
confidential, upon recommendation of the Civil Service Commission, the Budget Commission and the
Presidential Reorganization Commission.
for the reason that the latter may be considered merely as the initial determination of the Executive,
which in no case forecloses judicial review. A rule that exclusively vests upon the Executive the power
to declare what position may be considered policy-determining, primarily confidential, or highly
technical would subvert the provision on the civil service under the 1973 Constitution which was then
in force at the time the decree was promulgated. Specifically, Section 2 of Article XII of said Constitution
makes reference to positions which are policy-determining, primarily confidential, or highly technical
in nature," thereby leaving no room for doubt that, indeed, it is the nature of the position which finally
determines whether it falls within the above mentioned classification. The 1987 Constitution retains
this rule when in Section 2 of Article IX-C, it clearly makes reference to "positions which are policy-
determining, primarily confidential, or highly technical."
In the light of the foregoing, We cannot accept the view of the Solicitor General in his Rejoinder
20 that Salazar vs. Mathay 21 and Piñero, et al. vs. Hechanova, et al., 22 have already been modified by
Section 6 of P.D. No. 807 and the third paragraph of Section 1 of P.D. No. 868.
Not being primarily confidential, appointment thereto must, inter alia, be subject to the rule on
nepotism.
We likewise agree with the public respondent that there is one further obstacle to the occupation by
Benjamin Laurel of the position of Provincial Administrator. At the time he was designated as Acting
Provincial Administrator, he was holding the position of Senior Executive Assistant in the Office of the
Governor, a primarily confidential position. He was thereafter promoted as Civil Security Officer, also a
primarily confidential position. Both positions belong to the non-career service under Section 6 of P.D.
No. 807. As correctly ruled by the public respondent, petitioner cannot legally and validly designate
Benjamin Laurel as Acting Provincial Administrator, a career position, because Section 24(f) of R.A. No.
2260 provides that no person appointed to a position in the non-competitive service (now non-career)
shall perform the duties properly belonging to any position in the competitive service (now career
service).
2. Being embraced in the career service, the position of Provincial Administrator must, as mandated by
Section 25 of P.D. No. 807, be filled up by permanent or temporary appointment. The first shall be
issued to a person who meets all the requirements for the position to which he is appointed, including
the appropriate eligibility prescribed. In the absence of appropriate eligibles and it becomes necessary
in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets
all the requirements for the position except the appropriate civil service eligibility, provided, however,
that such temporary appointment shall not exceed twelve months, but the appointee may be replaced
sooner if a qualified civil service eligible becomes available. 23
Petitioner could not legally and validly appoint his brother Benjamin Laurel to said position because of
the prohibition on nepotism under Section 49 of P.D. No. 807. They are related within the third degree
of consanguinity and the case does not fall within any of the exemptions provided therein.
Petitioner, however, contends that since what he extended to his brother is not an appointment, but a
DESIGNATION, he is not covered by the prohibition. Public respondent disagrees, for:
By legal contemplation, the prohibitive mantle on nepotism would include designation, because what
cannot be done directly cannot be done indirectly. 24
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 or duty. 25
In Borromeo vs. Mariano, 26
this Court said:
. . . All the authorities unite in saying that the term "appoint" is well-known in law and whether regarded
in its legal or in its ordinary acceptation, is applied to the nomination or designation of an individual . .
. (emphasis supplied).
In Binamira vs. Garrucho, 27 this Court, per Mr. Justice Isagani M. Cruz, stated:
Designation may also be loosely defined as an appointment because it likewise involves the naming of
a particular person to a specified public office. That is the common understanding of the term. However,
where the person is merely designated and not appointed, the implication is that he shall hold the office
only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the
designation is considered only an acting or temporary appointment, which does not confer security of
tenure on the person named.
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." 28
3. As regards the last issue, We rule that the letter-complaint of Sangalang was validly given due course
by public respondent. Undoubtedly, as shown above, there was a violation of law committed by
petitioner in designating his brother as Acting Provincial Administrator. Any citizen of the Philippines
may bring that matter to the attention of the Civil Service Commission for appropriate action
conformably with its role as the central personnel agency to set standards and to enforce the laws and
rules governing the selection, utilization, training and discipline of civil servants, with the power and
function to administer and enforce the Constitutional and statutory provisions on the merit
system. 30 Moreover, Section 37 of the decree expressly allows a private citizen to directly file with the
Civil Service Commission a complaint against a government official or employee, in which case it may
hear and decide the case or may deputize any department or agency or official or group of officials to
conduct an investigation. The results of the investigation shall be submitted to the Commission with
recommendation as to the penalty to be imposed or other action to be taken. This provision gives teeth
to the Constitutional exhortation that a public office is a public trust and public officers and employees
must at all times be, inter alia, accountable to the people. 31 An ordinary citizen who brings to the
attention of the appropriate office any act or conduct of a government official or employee which
betrays the public interest deserves nothing less than the praises, support and encouragement of
society. The vigilance of the citizenry is vital in a democracy.
WHEREFORE, this petition is DENIED for lack of merit, and the challenged Resolutions of the Civil Service
Commission are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Romero, JJ., concur.